Erickson v. The Order of United Commercial Travelers of America

• Decision Date: 07 December 1918
• Docket Number: 21,736
• Citation: 103 Kan. 831,176 P. 989
• Parties: EDWIN ERICKSON, Appellee, v. THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant
• Court: Kansas Supreme Court

176 P. 989

103 Kan. 831

EDWIN ERICKSON, Appellee, v. THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant

No. 21,736

Supreme Court of Kansas

December 7, 1918

Decided July, 1918.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACCIDENT INSURANCE--Notice of Injury--Waived by Insurer. A provision in an accident insurance policy that notice of an injury must be given to the insurer within ten days after it occurs, may be waived by the retention of the proofs furnished by the insured and the act of the insurer in requiring the insured to obtain and furnish additional proofs or to do some act or incur some expense inconsistent with a forfeiture, and it is held under the testimony herein that the insurer waived the requirement as to the time of giving notice of injury.

2. SAME--"Immediate" and "Continuous Disability" Interpreted. The rule of Commercial Travelers v. Barnes, 72 Kan. 293, 80 P. 1020, followed, as to the meaning of the contract provision relating to the immediate and continuous total disability of a claimant.

3. SAME -- Limitation of Action to Six Months -- Repugnant to Statute. A provision in an agreement that actions on insurance policies can only be brought within six months after the claim has been disallowed is repugnant to the provisions of section 17 of the civil code, and therefore void.

Charles M. Howell, Joseph S. Brooks, both of Kansas City, Mo., and John A. Millener, of Columbus, Ohio, for the appellant.

David F. Carson, of Kansas City, for the appellee.

OPINION

JOHNSTON, C. J.:

This is an action to recover on an accident insurance contract, in which the plaintiff prevailed.

The policy was issued by the defendant on May 16, 1907, and was continued in force by the payments of dues and assessments until September 13, 1913, when the plaintiff was injured while pitching in a game of baseball. While the injury resulted in some pain at the time, it largely passed away and gave him little trouble until the last days of February following, when the pain became more severe, and upon an examination by a physician he learned for the first time that it was the result of the injury in the preceding September, and about that time he became totally disabled for work. Notice of the injury was not given to the defendant until March 12, 1914, and the constitution under which the policy was issued provided that written notice of an accident should be given to the supreme secretary within ten days after it occurred. It is conceded that notice was not given within that period, but it is contended that the requirement was waived by the defendant, or at least it is not in a position to rely on the failure as a defense. An insurance company may waive such limitation or estop itself to make the defense that timely notice of the accident was not given. There is a provision in the policy to the effect that no officer or agent of the company is permitted to waive a constitutional provision, but this condition, like the one fixing the time of notice, may also be waived. The question then is: Did the defendant waive the condition, or is it estopped to make the defense that notice was not duly given? It appears that after the belated notice was given, the defendant forwarded claim blanks to be filled out and returned by the plaintiff. This was not promptly done, and the defendant in a letter advised plaintiff that blanks had been sent, but no proofs had been received, asking him to forward them promptly, adding that "If your injury did not prove as serious as you anticipated, and you do not intend to file a claim, please advise us." Plaintiff responded that his doctor had not yet returned the claim blanks to him, but that he would get them the proofs in a day or two. The proofs requested were furnished, and there is testimony to the effect that they were never returned to the plaintiff. The attorney of the defendant negotiated with the plaintiff, and after the proofs had been finished, the supreme surgeon visited him, and upon an examination of his claims at that time requested the plaintiff to furnish...