Blunt v. National Fidelity & Casualty Co.
| Decision Date | 17 May 1913 |
| Docket Number | 17,178 |
| Citation | 141 N.W. 1033,93 Neb. 685 |
| Parties | NEWTON E. BLUNT, APPELLANT, v. NATIONAL FIDELITY & CASUALTY COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.
AFFIRMED.
George W. Berge, for appellant.
A. A Heacock, E. C. Strode and M. V. Beghtol, contra.
BARNES, SEDGWICK and HAMER, JJ., not sitting.
Plaintiff sued to recover $ 90 which he alleged was due him under a policy of health insurance issued by the defendant company for two months' disability by sickness from October 20, 1909, on the basis of $ 45 a month. He alleges defendant was duly notified of plaintiff's illness as the policy provides. Defendant by its answer admits the existence of the contract, and pleads the failure of plaintiff to comply with the provisions of the policy with respect to notice and proofs. The policy requires that written notice of the commencement of sickness "must be mailed to the secretary of the company at Omaha, Nebraska, and failure to give such written notice within ten days after the date of such injury, or commencement of illness, shall invalidate any and all claims under this policy." It also provides that "affirmative proof, verified by physician, must be filed with the company at Omaha, Nebraska, within one month from date of death, or loss of limb or sight, or termination of disability, otherwise all claims hereunder shall be forfeited to the company," and further provides, "if the insured is disabled by injury or illness for more than 30 days, he or his representative shall, as a condition precedent to recovery hereunder, furnish the company, every 30 days, with a report in writing from his attending physician or surgeon, fully stating the condition of the insured and the probable duration of disability." The evidence shows that in the latter part of October, 1909, plaintiff was attacked by illness. He called a physician, who at first diagnosed the case as la grippe. He also notified one Marstellar, the company's agent at Lincoln, who is vested with power to appoint subagents, solicit new business, make collections, and sign receipts. He received from Mr. Marstellar or from Mr. Bigley, an agent acting under Marstellar, a printed blank furnished by the defendant company for the purpose of giving notice of illness. This was filled out by him and by his attending physician, Dr. Ballard, apparently in conformity with the requirements of the company. It was delivered to Marstellar by the plaintiff, and was forwarded by him to the home office at Omaha. It bears upon its face a stamped imprint, "Received October 29th, 1909, N. F. C. Co., Omaha, Neb." Since written notice on the blank furnished by the company's agent was delivered to him within the time specified, and by him mailed at once to Omaha, no defense can be predicated upon the provisions of the policy requiring written notice in ten days after illness.
As to the requirement of notice of a disability by illness for more than 30 days, the testimony shows that Dr. Ballard made out another notice on November 10 or 15 not upon a blank of the company. Plaintiff testified that after the first report was made he was requested by Marstellar to make out another which was done, and in the latter report he stated the time he had been sick, that he gave it to Marstellar in his office at Lincoln, and that he also left with Marstellar a notice made out by Dr. Jonas of Omaha; that no request was made for a further report or proof. Bigley testified that he helped plaintiff fill out the first notice, and that he was instructed by Marstellar and Mr. Wolfle, the assistant secretary of the company, to leave proofs of injury and of recovery...
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