Jennings v. Brotherhood Acc. Co.

Citation96 P. 982,44 Colo. 68
Decision Date06 July 1908
CourtSupreme Court of Colorado

Appeal from Boulder County Court; Junius Henderson, Judge.

Action by John Jennings against the Brotherhood Accident Company. From a judgment of nonsuit, plaintiff appeals. Reversed and remanded.

Miller, Barnd & Affalter (Ernest L. Williams, of counsel), for appellant.

Oscar A. Johnson, for appellee.


Appellant held a policy of insurance issued by the appellee. This policy provided for payment to the insured of a stipulated sum per week for a specified time during disability resulting from sickness. Under this policy, appellant brought suit before a justice of the peace to recover from the appellee the benefits to which he claimed to be entitled and obtained judgment, from which the defendant company appealed to the county court, where it was tried de novo. At the conclusion of the testimony on the part of plaintiff, a motion for nonsuit was interposed by the defendant, and sustained. From this judgment the plaintiff appeals. The motion for nonsuit was based upon the following grounds: (1) That the suit was prematurely brought; (2) that notice of plaintiff's disability was not served within the time required; (3) that the plaintiff was not confined to the house for 14 consecutive days, as required by the terms of the policy, to entitle him to sick benefits; (4) that plaintiff did not prove from what disease he was suffering, and was unable to prove any particular disease.

In order to determine whether or not the judgment of nonsuit based upon these grounds was correct, it becomes necessary to briefly review the evidence bearing on the questions raised by the motion. The policy provides that 'no legal proceedings for recovery under this certificate shall be brought until the expiration of three months after receipt by the company of acceptable proofs of loss.' Within less than three months after proofs of plaintiff's illness had been received by the defendant company, he commenced suit to recover the benefits to which he claimed to be entitled. It appears from the testimony that, when he first notified the defendant of his illness, it denied all liability on the policy, and that, when he furnished the proofs of such illness, the company again refused to recognize that it was under any obligation to him whatever on the policy in question. Having denied its liability, and having expressly refused to pay plaintiff's claim, the defendant waived its right to insist that under the terms of the policy quoted no action should be commenced against it until three months after the receipt of plaintiff's proof of claim. California Ins. Co. v. Gracey, 15 Colo. 70, 24 P. 577, 22 Am.St.Rep. 376; Preferred Accident Ins. Co. v. Fielding, 35 Colo. 19, 83 P. 1013; U.S. Casualty Co. v. Hanson, 20 Colo.App. 393, 79 P. 176; Modern Brotherhood of America v Cummings, 68 Neb. 256, 94 N.W. 145. The provision of the policy invoked by the defendant is for its benefit, as stated in substance in Cal. Ins. Co. v. Gracey, supra, in order to afford it an opportunity to investigate the causes of loss and verify the proofs thereof, and also to give it an opportunity for making financial arrangements to discharge its obligation; but where, as in this instance, it repudiates all liability to the insured upon its policy, he may bring action at once upon being notified by the company that his claim will not be paid. The policy provides that: 'In the event of * * * sickness for which, directly or indirectly and claim may be made under this certificate, no benefits will become due or be paid, nor will the company be liable therefor, unless notice in writing shall be received at the home office of the company * * * within ten days from the commencement of total disability resulting from sickness, which notice must be signed by the certificate holder or his attending physician or beneficiary, stating full particulars, giving occupation of the certificate holder at the time, together with the number of his certificate, and his address.' The insured became indisposed and quit work about December 20th. He says that at this time 'I laid off for two or three days, got to feeling pretty good again, and I went back to work, and about January the 1st, 1903, or that evening, or December 31, 1902, I went home; hardly able to walk home. I did not go to work at all in the morning, thinking a few days' rest would fetch me out all right; talked to the doctor, and he advised me to lay off a little bit.' According to his statements, from this date he did little or no work, and kept on getting worse until about the 20th of the month, when he was totally disabled from doing any work whatever. His physician testifies that when he first prescribed for him, which was about the 1st of January, he thought he was suffering from a cold, with some trouble of the vocal cords; that at this time he did not regard his patient's illness as at all serious; that a few days later he observed he was not improving, and advised him to refrain from work for three or four days, but that he did not improve; that about the 20th of the month he came to the conclusion that his diagnosis was wrong, and that he was more seriously ill than he anticipated, and that, although he did not realize it at first, the insured was really incapacitated for work from the 1st of January, or shortly after he first began to treat him. At the request of the insured, the doctor notified the company of his patient's illness, placing the date of his disability from about the 1st of January. This notice was dated January 21st, and received by the company five days later. In the proof subsequently submitted by the insured to the company, he places his disability as commencing about January 1st. The company refused to recognize any liability to the insured, because, according to the notice of his disability, he had failed to notify the company within 10 days from the date it began.

The purpose of the provision of the policy invoked by the defendant and above quoted was to enable it to verify the...

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