Hohn v. Interstate Cas. Co. of New York

• Decision Date: 23 November 1897
• Court: Michigan Supreme Court
• Parties: HOHN v. INTERSTATE CASUALTY CO. OF NEW YORK.

72 N.W. 1105

115 Mich. 79

HOHN v. INTERSTATE CASUALTY CO. OF NEW YORK.

Supreme Court of Michigan

November 23, 1897

Error to circuit court, Saginaw county; Eugene Wilber, Judge.

Action by Julius C. Hohn against the Interstate Casualty Company of New York. There was a judgment for plaintiff, and defendant brings error. Affirmed.

John M. Brooks, for appellant.

F. E Emerick, for appellee.

MOORE J.

Plaintiff recovered a judgment against the defendant, from which judgment defendant appeals. The plaintiff was a barber by occupation. According to his testimony, he slipped, and, in the effort to save himself from falling, he received a severe wrench in the small of his back. The next day he went to his place of business, late. He suffered pain all the time, and did some work, but not nearly what he would have done if he had been well. Saturday night and all day Sunday he applied liniment and plasters to his body, the pain going all through his body, and lay on a couch all day Sunday. On Monday he went to his shop, and attempted to do some work. He suffered such pain that he fainted away. A doctor was called, who found him nearly, if not quite, unconscious, and he was sent home in a hack. During that week he got some better, and visited his shop each day, suffering pain all the time, and occasionally working a little, but was unable to perform all the duties of his business because of the pain he suffered. On the second Saturday while at the shop, he was forced to lie down, and was taken to his home and bed, where he remained for some weeks. He got some better, and went out by advice of his physician, took some cold, and was again confined to his bed.

Error is alleged in relation to the admission of testimony. We do not deem it necessary to discuss the allegation of error in that respect, but do not think any was committed.

Error is also assigned in relation to an amendment which was permitted of the bill of particulars and of the declaration. Notice was given of the proposed amendment to the attorney for the defendant, some days before the trial. We think the amendment was within the discretion conferred by the statute upon the trial judge. How. Ann. St. � 7631.

It is claimed on the part of the appellant that plaintiff did not give the notice of injury within the time required by the policy. Notice was given January 15th. On March 3d defendant company wrote plaintiff asking for further information, and did not suggest that the notice came too late. We think the trial judge was right in saying that this was a waiver of time in giving the notice. Nibl. Ben. Soc. & Acc. Ins. � 419; Towle v. Insurance Co., 91 Mich. 227, 51 N.W. 987 and cases there cited.

It is urged now that, as the proof of disability claimed for only five weeks', plaintiff cannot now recover for nine weeks', disability. The company refused to pay any of the claim, and based its refusal upon the ground that immediate notice was not given, which we have already shown was waived, and also because the disability was the result of illness, and not the result of the accident. By the terms of the policy, the plaintiff had two months from the time of the termination of the disability in which to furnish the company affirmative proof of the duration of disability. Long before this term expired, the company informed the plaintiff it would pay him nothing. In view of this fact, we do not think it can now avoid part of its liability because of a failure to furnish proof of the duration of disability, when it had informed the plaintiff that, no matter what his proof might be, it would not pay.

The policy contained this provision: "If such injuries independently of all other causes, shall immediately continuously, and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, the company will pay the insured the weekly indemnity before specified, during the continuance of such total disablement, not exceeding fifty-two consecutive weeks." It is the claim of the defendant that as plaintiff, according to his own testimony, visited his shop for several days, and did some work, he was not totally disabled, within the meaning of the policy, and could not recover. The trial judge submitted the question of total disability to the jury, as follows: "Was it a total disablement of the plaintiff immediately after the injury? He went to the shop the next day. He did some work. In the opinion of the court, if that portion of his testimony, and I only quoted a part of it to you,-you are to consider all of the testimony; but if it was a fact that from the time he was in the shop he did occasionally attempt to do certain portions of the work, but that whenever he attempted to do that he suffered additional great bodily pain, bodily discomfort, that it rendered him so weak that in a short time he had to sit down,-if that is true, it might be a case of total disablement, or disablement within the meaning of this policy. I think it would be, in the ordinary acceptation of that term, a total disability. That it does not mean that a party shall not have the physical power, perhaps, to do something, even if he in doing it suffers great bodily pain. If he was...