Heywood v. Maine Mut. Acc. Ass'n

• Decision Date: 27 January 1893
• Citation: 85 Me. 289,27 A. 154
• Parties: HEYWOOD v. MAINE MUT. ACC. ASS'N.
• Court: Maine Supreme Court

27 A. 154

85 Me. 289

HEYWOOD

v. MAINE MUT. ACC. ASS'N.

Supreme Judicial Court of Maine.

Jan. 27, 1893.

(Official.)

Report from supreme judicial court, Hancock county.

Action on a policy of accident insurance by Warren A Heywood against the Maine Mutual Accident Association. Heard on report Judgment for defendant.

This was an action of assumpsit upon an accident policy, dated April 20, 1889, and under which the plaintiff sought to recover for injuries received by him April 23, 1890. Plea was the general issue, with a brief specification relying for defense, among other grounds, upon the two following conditions in the certificate or policy:

"Second. In the event of an accidental Injury for which claim may be made under this certificate, or in case of death resulting therefrom, immediate notice shall be given in writing, addressed to the secretary of this association at Portland, stating the full name, occupation, and address of the insured, with full particulars of the accident and injury; and failure to give such written notice within ten days of the occurrence of such accident shall invalidate all claims under this certificate; and, unless direct and affirmative proof of the same, and of the death or duration of total disability, shall be furnished to the association within one year from the happening of such accident, then all claims shall be waived and forfeited to the association."

"Seventh. All the provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this certificate, are conditions precedent to the issuing of this certificate."

The plaintiff claimed that the following letters and affidavit constituted due and legal notice and proof of his disability according to the terms and conditions of the certificate:

"C. H. Boothby, Esq., Portland, Maine Dear Sir: Will you please send me a blank for indemnity claim, as I am quite seriously injured. Yours, truly, W. A. Heywood. Bucksport, May 19, 1890. (I.)"

"Portland, Me., May 19, 1890. W. A. Heywood, Bucksport, Me.—Dear Sir: Notice of your injury just received. Please inform me by return mail what your injury is, what you were doing at time of injury, and just how the accident happened. Also inform me what physician is attending you, and how long, in his opinion, you will be prevented from attending to the duties of your occupation by reason of your said injury. On receipt of your answer to each of the above inquiries I will mail you a blank on which to prove your claim. Very truly, C. H. Boothby, Sec'y. (Dictated.)"

"C. H. Boothby, Esq.—Dear Sir: Yours of the 27th at hand. In answer I will say that I am patiently waiting for the blanks which I asked for nearly two weeks since, and when they arrive I will be pleased to answer any of the questions contained in such blanks to the best of my ability. Yours, &c. W. A. Heywood. Bucksport, May 28, 1890."

"Portland, Me., May 27, 1890. W. A. Heywood, Bucksport, Me.—Dear Sir: My letter to you of the 19th instant remains unanswered. Will you kindly give it your immediate attention. We wish to know when you were injured, how, what the injury was, and its extent, to what extent you were disabled, what physician is attending you, and how long, in his opinion, you will be totally disabled. In my former letter I requested an immediate answer, and do not understand why you have not attended to it Very truly, C. H. Boothby, Sec'y (Dictated.)"

"To the Maine Mutual Accident Association, of Portland, Maine. F. L. Shaw, President C. H. Boothby, Secretary. Affidavit of Claimant I, Warren A. Heywood, a resident of Bucksport, county of Hancock, and state of Maine. My occupation was merchant (office duty) and reporter. I am insured in the Maine Mutual Accident Association, of Portland, Maine, under policy No. 5,887, dated April 20th, A. D. 1889, in the principal sum of $5,000, in favor of Ida E. W. Heywood, (wife,) and $25.00 per week indemnity. On the 23d day of April, A. D. 1890, I was in Bucksport aforesaid, when and where I received bodily injuries by accidental means, to wit, while carrying a ladder from my house to a building on fire, some forty rods distant, (which building was owned by my mother,) I received a severe strain, which produced aneurism of the femoral artery in my right leg or groin, from which bodily injury I have been immediately, wholly, and continuously disabled from transacting any and every kind of business pertaining to my occupation as above stated, independently of all other causes which bodily injury has continued from said 23d day of April, 1890, up to the present time, during the space of fifty-two weeks, for which I hereby claim indemnity at the rate of $25 per week, which, when paid, shall be in full of all claim which I have or may have on account of the personal injuries aforesaid. This is the only policy I hold for indemnity. Warren A. Heywood."

"State of Maine, Hancock—ss.: April 20, A. D. 1891. Personally appeared the above-named Warren A. Heywood, and made oath to the above affidavit Before me, O. F. Fellows, Justice of the Peace."

The declaration was in the usual form, and alleged notice of plaintiff's injuries as follows:...