199 P. 272 | Mont. | 1921
prepared the opinion for the court.
In this action the plaintiff seeks to obtain judgment against the defendant for an amount alleged to be due him on a contract of insurance existing between plaintiff and defendant. The case was tried to a jury, but at the close of the testimony the court sustained the plaintiff’s motion for a directed verdict, which was thereupon returned by the jury, and judgment entered thereon. The defendant appeals from this judgment and from the order overruling his motion for a new trial.
The plaintiff alleges: “That on or about the fifth day of April, 1916, the defendant entered into a contract of insurance with this plaintiff, in, by, and through which during the life of said contract he was insured against all disability resulting from illness. * * * That he paid to the defendant corporation the sum of $2.50 per month from April, 1916, to and including February, 1917. That commencing in the month of December, 1916, he was disabled from carrying on any employment by rheumatic fever for two months thereafter; that by and through the terms of said policy for such disability he was to receive an indemnity therefor in the sum of $60 per month.” That he made demand for said sum, but that payment was not made. No demurrer was filed, and the defendant’s answer consists wholly of a general denial, except that it admits the corporate capacity of defendant. The policy was introduced in evidence without objection. If the complaint was open to the objection now made, the defects were removed
During the trial of the cause, in answer to a remark made by the court, defendant’s counsel said: “Well, I will state, if the court please, that our defense is a lapse of payment on the policy, and also he didn’t notify the company within the required time, as stipulated by the contract, of his illness.” The case was tried upon this theory. The questions involved on this appeal, therefore, are: (a) Had the policy lapsed by reason of nonpayment? (b) Did the plaintiff notify the company of his illness within the time named in the policy, or show conditions that would excuse him from giving such notice at an earlier date than the proof of disability?
With reference to the notice, the plaintiff testified that he went to the hospital on the 10th of December, 1916; that he lost his senses about December 12, and he said: “I was down there for 35 days. I was not out of my head all the time. Just as soon as I got my senses, I notified the company. • I cannot remember the date. There was a fellow up to the hospital, and I told him to go down to Wilson, the tailor, and he went to the Western Life and reported. I don’t know whether this friend of mine went and reported this sickness of mine to the company or not. He came up there and said he reported it. I don’t know of my own knowledge. * * * From about the 12th of December till some time in January I didn’t have any sense at all. I don’t remember anything. Dr. Rhodes was the only doctor who treated me there in the hospital.”
The hospital referred to was the Murray Hospital in Butte, Montana. It is further in evidence that Dr. Rhodes signed the certificate, but neither the certificate nor its contents appear in the record.
About .the 4th of February, 1917, the plaintiff went to the office of the defendant, and notified it of his sickness, and made demand for payment. The only witness on the part of the plaintiff was the plaintiff himself.
The provisions of the policy which require written notice within ten days after the commencement of the disability must be read in connection with the provisions of the statute, section 5628, Revised Codes, which provides: “When preliminary proof of loss is required by a policy, the insured is not bound to give such proof as would be necessary in a court of justice; but it is sufficient for him to give the best evidence which he has in his power at the time.” And conditions may be such as to relieve the injured party from giving any notice at all except that contained in his final proof of disability. It is
This ease is clearly within the rule laid down by this court in Whalen v. Harrison, 26 Mont. 316, 326, 67 Pac. 934, 935, wherein, under similar circumstances it was held that “The court should not have taken up the duty of the jury, but should have left them to determine the weight to be given to his evidence.”
We think, in this case, the court committed error in sustaining plaintiff’s motion for a directed verdict, and recommend that the judgment be reversed, and the cause remanded for a new trial.
For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded for a new trial.
Reversed md remanded.