Dulany v. Fidelity & Cas. Co. of New York
| Decision Date | 26 April 1907 |
| Citation | 66 A. 614,106 Md. 17 |
| Parties | DULANY v. FIDELITY & CASUALTY CO. OF NEW YORK. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Henry Stockbridge Judge.
Action by R. Gordon Dulany against the Fidelity & Casualty Company of New York. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.
Argued before BOYD, PEARCE, BURKE, SCHMUCKER, and ROGERS, JJ.
George T. Mister and Bernard Carter, for appellant.
Vernon Cook, for appellee.
This is an appeal from a judgment of the superior court of Baltimore city in favor of the appellee, as defendant below, in a suit on one of its disability policies. The policy, of which a copy appears in the record, insures the appellant, to whom it was issued, against disability or death resulting from accident, and also against disability resulting from disease. By the terms of the policy the appellant was entitled to receive from the company $25 per week during a disability resulting from accident, which totally prevented him from attending to any of the duties of his occupation; but to an amount not exceeding $5,000. If the injuries causing the disability were received by the assured while riding on an elevator or as a passenger in a public conveyance propelled by steam, compressed air, electricity, or cable, or in consequence of the burning of a building while he was in it he was entitled to receive $50 per week during total disability, but to an amount not exceeding $10,000. If the injuries so received by the assured resulted in only partial disability, he was entitled to receive during such disability, for a period not exceeding 26 weeks, "a sum to be determined by the company, but not less than twenty five per cent. nor greater than seventy five per cent. of the weekly indemnity before specified depending upon the extent of the disability." The policy further provided that "if the assured shall suffer from bodily disease or illness not hereinafter excepted and such disease or illness shall wholly disable and prevent the assured from performing any and every kind of duty pertaining to his business or occupation, the company will pay to him twenty five dollars ($25) a week for the period of such disability during which he shall be necessarily confined to the house; any disability of less than seven consecutive days or in excess of fifty two weeks is not covered." Other provisions of the policy pertnent to the present case, required prompt written notice to be given to the company at New York City of any disability for which a claim was to be made, with full particulars and the name and address of the assured, and affirmative proof of the duration of the disability to be furnished, within two months after its termination, to the company. It was also provided in the policy that "legal proceedings for recovery hereunder may not be brought before the expiry of three months from date of filing final proofs at the company's home office, nor brought at all unless begun within six months from time of *** the termination of disability." It was further provided that claims not brought in accordance with the foregoing provisions would be forfeited to the company. The policy also provided that an agent had no authority to change it or waive any of its provisions, and that no notice to any agent or knowledge of his or of any other person should be held to effect a waiver or change in the contract or any part of it, and specified that the only method in which a change in the policy or a waiver of any of its provisions could be made was by an indorsement thereon signed by the officers of the company. Attached to the policy is a series of interrogatories and answers thereto made by the assured, designated a "Schedule of Warranties," on which appears the following statement, designated "O": "I have not been disabled, nor have I received medical or surgical attention during the past seven years, except as follows: None."
The appellant testified that he took out the policy through the defendant's agent, Mr. Harrison, who approached him about it, and he took his word for the policy. The record also contains evidence tending to show that on January 2, 1905, the appellant had a slight accident in his automobile, which skidded on a wet pavement and struck the curb stone and jolted him, but he was not thrown out, and "he did not feel any effects" from that accident. Two days thereafter, as he was getting off a trolley car at the corner of Calvert and Pleasant streets, in Baltimore, the motorman started forward, and he was thrown from the car and his body received a severe twist. He walked up the hill on Pleasant street toward his office, and, as he was nearing the top of the hill, he felt very severe pains on his left side such as he had never had before in his life. As soon as he reached his office on Charles street, he examined himself, and found a swelling at the base of his abdomen about the size of an English walnut which pained him very badly. He then went to see Dr. Thomas, who said it was a rupture, and sent him to Dr. Finney, who examined him and advised an operation, and he went to the Union Protestant Infirmary to be operated upon. He there underwent another examination by Dr. Finney, assisted by the house surgeon, at which it was discovered that he had acute pulmonary tuberculosis of recent development, but he was operated on for the hernia and was thereby confined to the hospital for a little over three weeks. He then promptly, before he had entirely recovered from the operation, went, under his physician's advice, to a sanitarium in the Adirondacks to be treated for the tuberculosis. He remained under treatment in the Adirondacks, and neighboring regions resorted to by consumptive patients for that purpose, until November 17th, when he returned to Baltimore, and again took up his business. About the middle of April he paid one short visit to Baltimore, but promptly returned on his physician's positive advice to the Adirondacks. During the first month of his treatment, he remained in the house or on its porch, where he was required to remain in order to be in the open air as much as possible. He took his exercise on the porch, and he testified that he did not think that he went off of it more than three times in that month, and then only to go to see his doctor. He also described his method of living during the remainder of his treatment in that region. There was other testimony tending to show that between April and November of the time spent by the appellant in the Adirondacks he was never sick enough to necessitate his staying in his house. Before going to the hospital, the appellant saw Mr. Steele, the Baltimore manager of the appellee company, and told him about this claim, and that he could not tell when he ruptured himself, whether it was from the automobile or the street car accident. He also told Mr. Steele, after he bad gotten out of the hospital, that he was going to the Adirondacks, when Steele said, "The policy was not good for that," and called his attention to the clause in it restricting the company's liability to the time during which he was closely confined to the house. The appellant filled out upon one of the company's blanks thereafter sent to him for that purpose by Mr. Steele a detailed statement of his claim, which, with the attending physician's statement, was sent to the company on May 1st, with a request to be advised if it was not complete, and was received by the company without protest or objection. In that claim the appellant stated that he had been suffering from illness which he described as "acute pulmonary tuberculosis and surgical operation for hernia performed by Dr. Finney," and also gave the other information called for by the company's blank on which it was made out, but nothing was said as to the cause which produced the hernia.
The appellant on cross-examination stated that for five or six years he had a clearing of his throat, and during one winter had gone about once a week to Dr. Fleming to have his throat and nostrils sprayed to get rid of...
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