Johnson v. Maryland Cas. Co.

• Decision Date: 02 May 1905
• Citation: 60 A. 1009,73 N.H. 259
• Parties: JOHNSON v. MARYLAND CASUALTY CO.
• Court: New Hampshire Supreme Court

60 A. 1009

73 N.H. 259

JOHNSON v. MARYLAND CASUALTY CO.

Supreme Court of New Hampshire. Grafton.

May 2, 1905.

Transferred from Superior Court; Pike, Judge.

Assumpsit by Leslie F. Johnson against the Maryland Casualty Company on a policy of insurance against accidental injuries. A verdict was found by the court in favor of defendants on an agreed statement of facts, to which plaintiff excepted, and the case was transferred to the Supreme Court. Exceptions overruled.

The plaintiff was injured July 18, 1903, and is entitled to recover unless defeated by failure to give notice in accordance with clause 8 of the policy, which is as follows: "Immediate notice must be given the company at Baltimore, or its duly authorized agent, of any accident and injury for which a claim is to be made, with full particulars thereof, and full name and address of the assured. Unless such notice be given within ten days after the accident, no claim shall be valid. Affirmative proof of death, or loss of limb, or of sight, or of duration of disability, must also be furnished to the company within two months from time of death, or of loss of limb, or of sight, or of the termination of disability. Legal proceedings for recovering hereunder may not be brought until after three months from date of filing proofs at the company's home office; nor brought at all unless begun within six months from the time of death, loss of limb, or sight, or the termination of disability. Failure to comply with the provisions of this section shall debar recovery for such injuries." Before the policy was issued the plaintiff discussed the subject of insurance with an agent of the defendants, and referred the agent to his father, who, acting for his son, purchased and received the policy in suit on December 5, 1902. The father did not inform the plaintiff of the policy, and the latter had no knowledge of it, until November 13, 1903. He did not realize that he was seriously injured until two weeks after the accident. As soon as the plaintiff's father recalled the fact of the insurance, he notified his son, who immediately notified the company. The failure of the plaintiff to return the notice required by the policy was the result of accident, mistake, and misfortune, due to the fact that in the first instance he did not consider himself seriously injured, and at that time would not have made any claim if he had known of the policy, and after his injury developed he was unaware of the existence of the policy, and was greatly disabled in respect to his opportunity and ability to attend to business. The plaintiff offered to prove that the defendants were not injured by the delay in giving notice.

Batchellor & Mitchell and Everett C. Howe for plaintiff. George F. Morris, for defend ants.

PARSONS, C. J. The defendants do not contend that the plaintiff's father, George L. Johnson, was not authorized, as the plaintiff's agent, to negotiate the policy of insurance in suit, and to complete the contract by acceptance of the policy upon its delivery to him. If he had not such authority, there was no contract between the parties to this suit. Busher v. Insurance Co., 72 N. H. 551, 58 Atl. 41; Perry v. Insurance Co., 67 N. H. 291, 33 Atl. 731, 68 Am. St. Rep. 668; Tasker v. Insurance Co., 59 N. H. 438, 444. If George L. Johnson had authority, as the plaintiff's agent, to complete the contract by accepting the policy, his acceptance was the plaintiff's acceptance, and the case stands as if the policy had been delivered to and accepted by the plaintiff. He is chargeable with the knowledge of his agent of the terms of the contract made for him by his agent. Morrison v. Insurance Co., 64 N. H. 137, 139. 7 Atl. 378; Tasker v. Insurance Co., 59 N. H. 438, 445; Patten v. Insurance Co., 40 N. H. 375. Whether the father's agency for the son was created by prior authorization or subsequent ratification, the son can maintain his suit only upon the ground that the contract his father made for him was his contract. From the plaintiff's "acceptance of the policy and his commencement of a suit upon it, it must be held, in the absence of fraud or imposition, that the plaintiff had notice of, understood, and agreed to, and is bound by the terms, limitations, and conditions contained therein." Dwyer v. Insurance Co., 72 N. H. 572, 574, 58 Atl. 502; Davis v. Insurance Co., 67 N. H. 335, 338, 39 Atl. 902; Brown v. Insurance Co., 59 N. H. 298, 307.

In the absence of statutory prohibition, the parties had the right in an insurance contract, as in any other contract, to incorporate into their agreement such conditions as appeared to them proper. Dwyer v. Insurance Co., 72 N. H. 572, 573, 58 Atl. 502; Boardman v. Insurance Co., 20 N. H. 551, 555. The contract for insurance is a voluntary one, and the insurers have the right to designate the terms upon which they will be responsible for losses. Riddlesbarger v. Insurance Co., 7 Wall. 386, 390, 19 L. Ed. 257. They "are liable only in accordance with the terms and stipulations expressed in their contract as the conditions of their liability." Moore v. Insurance Co., 62 N. H. 240, 241, 13 Am. St. Rep. 556. One term of the contract in suit, to which the plaintiff agreed by his father's acceptance of the policy, was the provision for notice to the defendants of any accident or injury for...