Guy v. United States Cas. Co

• Decision Date: 15 December 1909
• Citation: 151 N.c. 465,66 S.E. 437
• Court: North Carolina Supreme Court
• Parties: GUY. v. UNITED STATES CASUALTY CO.

(151 N.c. 465)

66 S.E. 437

GUY.

v.UNITED STATES CASUALTY CO.

Supreme Court of North Carolina.

Dec. 15, 1909.

1. Insurance (§ 539^*)—Health Insurance-Notice of Claim—Failure to Give Notice —Excuse.

Where insured's mental condition or physical suffering is such that he cannot give the insurer notice of the contraction of a disease or sickness for which he subsequently claims benefits, as required by the policy, he will be excused for not doing so.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1334; Dec. Dig. § 539.*]

2. Insurance (§ 539*)—Contracts—Notice of Sickness.

A provision in a policy requiring written notice of disease to be given by insured or his physician within 10 days of its contraction only requires that notice be given within 10 days of the beginning of that part of the illness for which insured claims benefits, so that the company shall not be liable for more than 10 days' payments before the time it receives notice; the purpose of the provision being to permit investigation so as to prevent imposition.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1328; Dec. Dig. § 539.*]

3. Insurance (§ 537*)—Health Insurance-Notice of Sickness — Consideration of Policy.

Under a provision of a health insurance policy requiring notice of illness or disease to be given by insured or his physician within ten days of the contraction of the illness, any relative or friend may give such notice for insured.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1324; Dec. Dig. § 537.*]

4. Appeal and Error (§ 1011*)—Findings of Court—Conclusions.

The conclusion of the trial court, upon setting out the testimony, that all of it is true, without making any finding therefrom, will be disregarded on appeal, where the testimony set out was directly conflicting.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3983; Dec. Dig. § 1011.*]

Appeal from Superior Court, McDowell County; Justice, Judge.

Action by William W. Guy against the United States Casualty Company. From ajudgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Pless & Winborne, for appellant.

W. T. Morgan, for appellee.

CLARK, C. J. This is an action upon a health insurance policy, begun before a justice of the peace, for eight weeks' indemnity at $10 per week on account of plaintiff's sickness. The policy requires that "written notice of such disease be given by the insured or his attending physician to the company at its home office within 10 days of its contraction." In some cases, especially in certain diseases, the condition of the patient may be such by reason of his mental condition or violent physical suffering that he cannot give the notice. In such cases the rule intimated in Williams v. Casualty Co. (this same defendant) 150 N. C. 598, 64 S. E. 510, is that, where the patient on account of his condition is unable to give notice, he would be excused, if the failure to give notice is without negligence on his part. Nor do we think that "within 10 days of its contraction" can reasonably be construed to mean what the defendant contends that it does. Many perhaps most diseases are "contracted" months or years before the time, when, like an underground river, they come to the surface. And even then many days more than 10 may pass before the disease compels the sufferer to quit work or otherwise entitles him to claim benefit under a health insurance policy. We think the fair and just meaning is that the notice must be given "within 10 days of the beginning of that part of the illness for which the insured claims payment, " so that the company shall not be liable for more than 10 days' payment prior to...