General Acc., Fire & Life Assur. Co. v. Walker

• Decision Date: 22 May 1911
• Docket Number: 14,669
• Citation: 55 So. 51,99 Miss. 404
• Court: Mississippi Supreme Court
• Parties: GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CO. v. ALLEN WALKER

55 So. 51

99 Miss. 404

GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CO. v. ALLEN WALKER

No. 14,669

Supreme Court of Mississippi

May 22, 1911

APPEAL from the circuit court of Forrest county, HON.W. H. COOK Judge.

Suit by Allen Walker against the General Accident, Fire and Life Assurance Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Stephens Stephens & Cook, for appellant.

The provision for notice of injury within ten days from the date of injury is valid and binding. The authorities are multitudinous and harmonious on this point. See Cyl., vol. 1 page 274, paragraph "A" and citations there given. Am. and Eng. Ency. Law, vol. 1, page 323, par. 3; in Craig v. U. S. Health & Accident Ins. Co., 61 S.E 423 (Sup. Ct. S. C., '08), and Hatch v. U. S. Cas. Co., 83 N.E. 398 (Mass., '08), it was held that the requirement of clause "M" of the policy is valid. "The circuit court in affirming the judgment of the magistrate held the provisions of the policy (above referred to) as to time in which notice of sickness should be given, to be without effect and void, because unreasonable. We think this decision of the circuit judge was clearly erroneous. It concerns not only the constitutional rights, but in the highest degree the business prosperity of the people, that freedom to contract should be preserved inviolate. It is true freedom to contract is not unlimited, for the lawmaking hand of the government may impose such limitations as can be reasonably considered to be for the public health, safety, or morals." In the case last above cited the court said:

"If it be said, as it sometimes is, that such a defense is purely technical, the answer (if one is needed) is that the provision for notice is the essence of the contract, that it is manifestly an important provision for the protection of the insurer against fraudulent claims, and also against those which, though made in good faith, are not valid. It is a provision which tends to the lucidation of the truth when claims for indemnity are made. It is one to which the assured agreed and it is not unreasonable." Hatch v. U. S. Casualty Co., 83 N.E. 398 (Mass., 1908).

In Heywood v. Acc. Assn., 85 Me. 289, 293 (1893), the contract said: "The policy contained a stipulation that failure to notify the company of the injury for ten days after it was received should bar all claim therefor. It was competent for the parties to make the agreement, and they are bound by it." See, also, Kimball v. Acc. Assn., 90 Me. 183, 185 (1897); Wholen v. Equitable Acc. Co., 58 A. 1057 (Me. 1903); Johnson v. Ind. Cas. Co., 60 A. 1009 (N. H. 1905); Blockman v. Casualty Co., 117 Tenn. 578, 588 (1906); Dunsher v. Travelers' Ins. Co., 25 Pa. S.Ct. 559, 563 (1904); Foster v. Fid. & Cas. Co., 40 L. R. A. 833 (Wis. 1898); United Benefit Assn. v. Freeman, 36 S.E. 764; Martin v. Equitable Acc. Co., 16 N.Y.S. 279; Travelers' Ins. Co. v. Nox, 142 F. 653; Woodens' Acc. Assn. v. Byers, 87 N.W. 346; James v. U. S. Cas. Co., 88 S.W. 125; Bezell v. Ins. Co., 176 Mo. 279; Grant v. N. A. Cas. Co., 83 N.W. 316; McCord v. Masonic Cas. Co., 88 N.E. 6 (Mass., 1909); Williams v. U. S. Cas. Co., 64 S.E. 410 (N. C., 1909); N. A. Accident Ins. Co. v. Watson, 64 S.E. 693 (Ga., 1909); Woodall v. Fidelity & Gass Co., 62 S.E. 808 (Ga., 1908).

Clyde R. Conner, for appellee.

An examination of the policy sued on shows that at paragraph "M" notice is required to be at the office of the corporation in Philadelphia, Pa., within ten days of the accident. Now the notice which was mailed to the Philadelphia office, and it is similar to the one left with appellee when his policy was issued, can be found in this record as exhibit "A" to the depositions of J. J. Krist. In the upper right hand corner of said notice there appears the following: "To be filled out by the assured. Note. Immediately after the happening of the accident this blank must be executed by claimant and physician and forwarded at once to the company at Philadelphia, Pa. Every question must be answered fully. This clause is made a part of the insurance contract by the corporation requiring the assured to send this particular blank notice on the happening of an accident. It can readily be seen that paragraph "M" in the policy and this clause in the blank preliminary notice of accident, which the corporation required claimant to fill out and send to it immediately, are contradictory. Which will this court enforce? The paragraph "M" in the policy requires that the notice must be at the Philadelphia office of the corporation within ten days of the date of the accident, or after the injury, or else four-fifths of the principal sum of the policy must be forfeited.

We will admit that a large per cent of the cases cited by counsel hold that the ten days' notice clause to be reasonable and binding on the assured. The facts in the case at bar are different from all of those cited, in that the record although it is not as clear as it could be, shows that it took eight days for this preliminary notice to go from Sumrall, Mississippi, to Philadelphia, Pa., office of the corporation. The witness Walker says that the notice was filled out by Heidleberg, and is a part of the record in this case as an exhibit to J. J. Krist's testimony; then two or three days afterwards the doctor filled out the other side and mailed it to the corporation. Now an examination of this notice in the upper right hand corner shows that Dr. Anderson filled it out on April 20th. The witness first testifies that it was received at the corporation's office on the 28th, or eight days later. The witness Walker further testifies that the doctor would not allow anyone to see him until three or four days after the injury. We see from this that the ten days notice in this particular case really amounts to requiring the appellee to give notice of the injury within two days after the date of the accident. Now this fact, viewed in the light of the undisputed testimony that the doctor would not allow anyone to see appellee for three or four days...