Brix v. American Fidelity Co.

• Decision Date: 04 February 1913
• Citation: 153 S.W. 789
• Parties: BRIX v. AMERICAN FIDELITY CO. OF MONTPELIER, VT.
• Court: Missouri Court of Appeals

153 S.W. 789

BRIX v. AMERICAN FIDELITY CO. OF MONTPELIER, VT.

St. Louis Court of Appeals. Missouri.

February 4, 1913.

Rehearing Denied March 3, 1913.

1. APPEAL AND ERROR (§ 1008) — REVIEW — TRIAL TO THE COURT.

Where a cause was tried to the court, and no instructions asked or given, the appellate court, though not advised as to the views of the trial court or the theory of law it pursued, will not reverse the judgment, if sustainable on any view of the evidence, with all reasonable inferences in favor of plaintiff, who recovered.

2. INSURANCE (§ 561) — ACCIDENT INSURANCE — NOTICE OF INJURY — WAIVER.

Where early notice of injury was not given, as required by an accident policy, and the insurer's general agent denied all liability when notice was served, but the adjuster called on insured and discussed a settlement, and later sent a check in form of a receipt in full, which insured rejected, and afterwards insurer's physician examined the insured, and it finally rejected the claim, resting its refusal on the assertion that insured was suffering from malaria, and not

from injury, the requirement of early notice was waived.

3. INSURANCE (§ 539) — NOTICE OF INJURY — FORFEITURE.

Failure to give early notice, as required by an accident insurance policy, at the most merely authorized the insurer to declare a forfeiture for that cause.

4. INSURANCE (§ 555) — REQUIREMENT OF NOTICE — WAIVER.

The requirement as to early notice of injury, in an accident insurance policy, was for the benefit of the insurer, and could be waived by it.

5. WORDS AND PHRASES — "WAIVER."

A "waiver" is the intentional abandonment or relinquishment of a known right, and the intention to do so is the essential element involved.

6. INSURANCE (§ 555) — WAIVER — RECALL.

Where the conduct of an insurer amounted to a waiver of a requirement of notice of injury under an accident policy, it could not thereafter recall the waiver and declare forfeiture.

7. INSURANCE (§ 666) — ACCIDENT INSURANCE — ACTION — AMOUNT OF RECOVERY.

Though the amount to which insured was entitled for time totally disabled and time partially disabled was, under the term of the policy, a matter for the insurer to determine, it, having refused the claim, could not complain that the court permitted recovery in the maximum amount allowed by the policy.

8. HUSBAND AND WIFE (§ 79) — CONTRACTS OF THE WIFE — INSURANCE.

Rev. St. 1909, § 8304, declaring that a married woman shall be deemed a feme sole, and may contract, and sue and be sued to enforce such contracts, does not suggest that a married woman must be engaged in some business before entitled to recover on contracts assuring a right to her, and recovery by a married woman, on an accident insurance policy, could not be defeated on the ground that, she not being in business, her husband alone was entitled to her services, and alone entitled to recover therefor.

9. INSURANCE (§ 141) — CONTRACT OF WIFE — WAIVER.

An insurer, after entering into a contract of accident insurance with a married woman, was estopped to dispute its obligation to pay after an accident occurred on the ground that she, not being engaged in business, could not recover the value of her services.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by Libbie Brix against the American Fidelity Company of Montpelier, Vt. From a judgment for plaintiff, defendant appeals. Affirmed.

Igoe & Carroll, of St. Louis, for appellant. Frederick A. Mayhall, of St. Louis, for respondent.

NORTONI, J.

This is a suit on a policy of accident insurance. Plaintiff recovered, and defendant prosecutes the appeal. On agreement of the parties, the case was tried before the court without a jury.

The principal question for review here relates to the matter of the court's giving judgment for plaintiff, though it appeared notice of the accident was not given to defendant within a reasonable time, as required by the policy. By the policy of insurance, defendant agreed "to indemnify the insured, Mrs. Libbie Brix, against bodily injury caused solely by external, violent, and accidental means while this policy is in force." By another provision of the policy, the insured agreed that "notice in writing shall be given to the company at its home office, or to the agent by whom this policy has been countersigned, as early as may be reasonably possible, of the event of any accident."

The insured plaintiff, a married woman, together with her husband and baby, was sojourning at Briggsville, in Wisconsin, at the time of the accident, on a pleasure trip during the summer vacation. At that place, on August 12, 1909, plaintiff met with an accident while in the act of alighting from a buggy. In some manner her skirts became entangled, and she was thrown with great force against the wheel of the vehicle, and thus received an injury to her side immediately over the liver. It appears she was forthwith seized with great pain, and suffered therefrom for several weeks thereafter. Plaintiff's suffering was such as to occasion her to terminate her vacation at that place, and she and her husband went to Chicago on August 15th, where they remained three or four days visiting her aunt. During the time at Chicago, plaintiff was confined to the house, and, though not in bed, she lounged upon the couch and continued to suffer as before. Instead of returning to her home in St. Louis, about August 20th plaintiff and her husband went to Kimmswick, Mo., to visit with plaintiff's mother, while she recuperated. She remained at Kimmswick with her mother for several weeks, and, while there, was under the care of a physician. Finally, about September 5th, she, with her husband, returned to her home in St. Louis, and continued under the care of a physician here for several weeks.

The evidence tends to prove that plaintiff suffered an injury to her liver through the fall above mentioned, and that internal hemorrhages resulted therefrom. It appears that plaintiff was totally disabled, as a result of the accident, and confined to her bed practically all of the time for 10 weeks after its date, on August 12th, and was for six weeks thereafter partially disabled. The policy vouchsafes indemnity for such injuries at the rate of $7.50 per week for total disability, and for partial disability "a sum to be...