6 Ga. App. 193 | Ga. Ct. App. | 1909
Lead Opinion
Watson sued the North American Insurance Company in a justice’s court for $100, claimed as a sick benefit under a policy issued to him by the company. He obtained a judgment for the full amount, and, on appeal to the superior court, the jury found a verdict in his favor for this amount. The company filed a motion for a new trial, which was. overruled. The insurance company defended on the sole ground that the plaintiff had forfeited his right to the sick benefit claimed by him under the policy, because of his failure to comply with the following express condition thereof: “Written notice of any injury, fatal or non-fatal, or of any sickness for which claim can be made, shall be given to the company at its home office at Chicago, within ten days of the occurrence of the accident or commencement of the sickness, and failure to give such written notice within ten days from the date when it becomes possible to give such notice of injury, or, in case of sickness, within ten days from date of commencement of sickness, shall invalidate any and all claims under this policy.” The company admitted that it had received written notice from the plaintiff of his sickness, but claimed that this notice had not been received by it, either at its home office in Chicago or elsewhere, within ten days from the commencement of the plaintiff’s sickness, as required by this stipulation of the policy. The plaintiff replied to this defense by the allegation that he had been providentially prevented from giving the written notice within the ten days, because of mental and physical incapacity caused by his sickness; and that, after he had recovered sufficiently to give the notice required by this condition of his polic3r, he did so with all reasonable and proper diligence. By an amendment to his petition he alleged that the company had waived his failure to give the notice within the time stipulated, by sending to him, through its agent, a blank form for the purpose of having him prepare and send the notice to it, which he did as soon as he received the blank. The question for decision arises on the construction of this condition of the contract.
Some authorities hold, that where the language is plain and unambiguous, .and mandatory in its character, its terms can not be enlarged by judicial construction, but demand strict compliance with the letter of the contract, and that liability can not in any event survive a failure to comply literally with its requirements
.We deduce the proposition from the authorities cited that where the insured is suddenly stricken with some disease of the brain which renders him unconscious and makes it impossible for him to give to the company, within the time stipulated, written notice of his sickness, this fact is legally sufficient to excuse him from a compliance with this condition of the policy during the existence of such disability. We are also of the opinion that, although the time in which the insured should give to the.company written notice of his sickness is fixed, if the sickness itself makes a literal compliance impossible, giving the notice required within a reasonable time after it becomes possible to do so, or, within the time stipulated after the cause preventing prior compliance has ceased to exist, would be sufficient to prevent a forfeiture. McFarland v. U. S. Mutual Accident Asso., 124 Mo. 204 (27 S. W. 436); Woodmen Accident Association v. Pratt, supra. The questions of the sufficiency of the excuse offered, and the diligence of the beneficiary in giving the notice after the removal of the disability, are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case.
The material facts in the case now under consideration are not controverted. On July 20, 1907, the insured, while walking on the streets in Macon, was suddenly stricken with some disease of the brain which rendered him unconscious. He was taken to a hospital, where he remained under constant treatment for sixteen days. During the first five days he was totally unconscious; in the remainder of the time he had lucid intervals, but, according to the testimony of his physician, during the entire sixteen days he was incapable of transacting any business. On August 5 he was sufficiently restored to be removed to his home, some ten miles in the country. According to his own testimony, as soon as he arrived at his home, he sent for his family physician, and on the next day after his arrival he secured his policy, with a blank copy of the notice required to be given of his sickness, and asked the
There is no evidence whatever that the company waived a performance by the plaintiff of this condition of the contract. The only evidence relied upon by the plaintiff as showing a waiver is the fact that the company’s agent at Atlanta sent him a blank for the purpose of giving the notice. But it is undisputed that the agent did not know that the plaintiff had been sick, or that he had not given the notice as required, when he sent the blank in compliance with his request. In his letter to the agent asking for a blank, the plaintiff did not inform him even that he had been sick, and in the letter there was no intimation given to the agent that the plaintiff had forfeited the benefits of his policy by a failure to comply with any of its conditions. Judgment reversed.
Dissenting Opinion
dissenting. I concur in the propositions stated in the first three headnotes, but I can not agree to set aside the finding of the jury in this case upon a question which it was their sole province to determine. It is conceded, in the opinion of the majority, that the stipulation of the contract which affords the insurance company its sole excuse for claiming a forfeiture of the sick benefits which the jury found that the defendant in error was entitled to recover (to wit, the condition that “written notice of any injury, fatal or non-fatal, or of any sickness for which claim can be made, shall be given to the company at its home office at Chicago, within ten days of the occurrence of the accident or commencement of the sickness, and failure to give such written notice' . . in ease of sickness, within ten days from date of commencment of sickness, shall invalidate any and all claims under this policy”) must be treated as a condition subsequent, and not as a. condition precedent, nor as an essential warranty on the part of the insured.
In this case my brethren, conceding that the evidence shows that the insured could not give the stipulated notice within the ten days required by the contract, and admitting that within a certain period thereafter a notice would have been efficacious, nevertheless hold that the notice given by the insured at a later period, by a few days, comes too late, and the insured’s benefits must be lost to him because notice was not given three weeks sooner. Of what materiality is this stipulation? If it be reasonable at all, espe
If Watson had never given any notice, and the circumstances had been such as to authorize the jury to find that he was not excused therefrom, the circumstance that he had failed to give the notice might tend to discredit the bona fides of his claim, but mere failure to give notice could not defeat it if a jury was authorized to find, and did find, that the circumstances were such as that he was excused from giving notice. I think that the jury were authorized to find that Watson (whom the evidence does not show to have been well, although convalescent) was as much to be relieved from literal compliance with the stipulation in regard to the ten days’ notice at the time when the notice was finally sent as he could properly have been excused (according to the opinion of my brethren) at the time that he first sent the notice to the physician. As to whether the notice, if ever given, was given in a reasonable time, was a question purely for the jury, and their finding, aj>proved by the learned trial judge, meets my hearty concurrence. If it is the purpose of a contract of insurance to honestly furnish indemnity against loss, the substance of the contract should be preserved, regardless of immaterial technical stipulations. It is not to be supposed that it was within the contemplation of the parties to this contract of insurance that an honest claim for indemnity, purchased by the insured’s payment of the required premiums for that sole purpose, should be defeated because of non-compliance with stipulations designed solely for the protection of the insurer against fraud, and where it could not be contended that compliance would either increase or diminish the true amount to which the beneficiary would be entitled in return for the premiums. Insurance premiums are designed not wholly for the profit of the
Concurrence Opinion
specially concurring. I agree that the condition as to notice is prima facie reasonable. I agree that the time during which the insured was, by reason of his mental incapacity, prevented from sending the notice is not to be counted as a part of the ten days. I think, however, that when he had had ten days, after excluding from the calculation the period of his mental and physical incapacity, to send the notice, and had not sent it, his right to sue on the policy ended.