Bates v. German Commercial Accident Co.

• Decision Date: 13 October 1913
• Citation: 87 Vt. 128,88 A. 532
• Court: Vermont Supreme Court
• Parties: BATES v. GERMAN COMMERCIAL ACCIDENT CO.

88 A. 532

87 Vt. 128

BATES

v. GERMAN COMMERCIAL ACCIDENT CO.

Supreme Court of Vermont Franklin.

Oct. 13, 1913.

Exceptions from Franklin County Court; Frank L. Fish, Judge.

Action by Burnice B. Bates against the German Commercial Accident Company. Judgment for defendant, and plaintiff brings exceptions. Reversed and rendered.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

A. B. Rowley, of Richford, for plaintiff.

W. B. Locklin, of Richford, for defendant.

POWERS, J. The accident policy which the plaintiff held in the defendant company contained a provision which, read in connection with P. S. 4823, limited the period within which a suit thereon could be brought to one year from the date of the accident on which it was predicated. This policy was issued October 19, 1908, and on the 21st the plaintiff suffered the accidental injuries which form the basis of this suit. He seasonably filed with the defendant proofs of his injury and his claim was promptly rejected. Nothing further was said or done by either party until October 26, 1911, when, as stated in the defendant's brief, at the suggestion of the State Insurance Commissioners, the defendant began a correspondence with the plaintiff regarding the matter. On that date the defendant's treasurer wrote the plaintiff a letter in which, after referring to the company's desire to meet all requirements of the Commissioner's committee, he said: "Will you be kind enough to give us full information regarding the nature of the accident which occurred to you on October 21, 1908. Kindly be specific in your dates, giving us the length of time you were disabled from this injury and stating the nature of the accident and how it occurred. On receipt of same, this company will reopen your case." This request was complied with, and on October 31, 1911, the treasurer again wrote the plaintiff, saying: "We are inclosing herewith final claim papers which you and the attending physician will kindly fill in with the information relative to your accident of October 21, 1908. Also kindly give me the name of the hospital at Burlington, Vt., in which you were operated on. In forwarding you these blanks, we must request that you kindly answer each and every question asked as it will facilitate matters greatly and we are very anxious to have your claim finally disposed of." These requests were also complied with by the plaintiff. On November 6, 1911, the treasurer again wrote the plaintiff acknowledging receipt of his claim papers and calling for still further information by way of an attested statement of a notary public that the plaintiff was physically sound and without any hernia prior to the accident. This too was furnished. Finally, on November 9th, the treasurer sent the plaintiff a check for $25 expressed to be in full settlement and called attention to certain provisions of the policy to show that this was the amount recoverable. The plaintiff returned the check and brought this suit.

The validity of the limitation clause is not and could not be questioned. Wilson v. Ætna. Ins. Co., 27 Vt. 99; Morrill v. N. E. Fire Ins. Co., 71 Vt. 281, 44 Atl. 358.

It was, however, inserted in the policy for the benefit of the company and may be waived. Thompson v. Phenix Ins. Co., 136 U. S. 287, 10 Sup. Ct. 1019, 34 L. Ed. 408. It stands just like any other such provision in the policy—no better and no worse. The waiver may be oral or written, express or implied, before or after forfeiture; it requires no new consideration and need not amount to an estoppel to be effective. Webster v. State Mutual Fire Ins. Co., 81 Vt. 75, 69 Atl. 319.

The facts here relied upon to constitute a waiver were subsequent to the forfeiture; and, while one or two isolated cases can be found holding that the waiver must occur within the period of limitation, by the better reason the true rule is that, if in any negotiations with the assured, after knowledge of the forfeiture, the company recognizes the continued validity of the policy, does acts based thereon, or requires the insured by virtue thereof to incur trouble or expense, the forfeiture is, as matter of law waived and cannot thereafter be asserted by the company. And so are the authorities. Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Roby v. Am. Cent. Ins. Co., 120 N. Y. 510, 24 N. E. 808; Cov. Mut. Life Asso. v. Baughman, 73 Ill. App. 544; De Farconnet v. Western Ins. Co. (D. C.) 110 Fed. 405, affirmed 122 Fed. 448, 58 C. C. A. 612; Coursin v. Penn. Ins. Co., 46 Pa. 323; N. E. Mut Life Ins. Co. v. Springate, 129 Ky. 627, 112 S. W. 681, 113 S. W. 824, 19 L. R. A. (N. S.) 227; Rundell v. Anchor Fire Ins. Co., 128 Iowa, 575, 105 N. W. 112, 25 L. R. A. (N. S.) 20; Oshkosh Gas Lt Co. v. Germania F. Ins. Co., 71 Wis. 454, 37 N. W. 819, 5 Am. St. Rep. 233; Brown v. State Ins. Co., 74 Iowa, 428, 38 N. W. 135, 7 Am. St. Rep. 495; Queen's Ins. Co. v. Young, 86 Ala. 424, 5 South. 116, 11 Am. St Rep. 51; Bonnert v. Penn. Ins. Co., 129 Pa. 558, 18 Atl. 552, 15 Am. St Rep. 739; Murray v. Home Benefit Life Asso., 90 Cal. 402, 27 Pac. 309, 25 Am. St. Rep. 133; Knickerbocker Ins. Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689; Webster v. St. Mut Fire Ins. Co., 81 Vt. 75, 69 Atl. 319.

This record presents a typical case of waiver under this rule. It shows in unmistakable terms that the company, with full knowledge, treated the policy as valid; that it acted upon it; and that it...