Maynard v. United States Health & Accident Co.

• Decision Date: 05 December 1911
• Citation: 76 N.H. 275,81 A. 1077
• Parties: MAYNARD v. UNITED STATES HEALTH & ACCIDENT CO.
• Court: New Hampshire Supreme Court

81 A. 1077

76 N.H. 275

MAYNARD

v. UNITED STATES HEALTH & ACCIDENT CO.

Supreme Court of New Hampshire. Hillsborough.

Dec. 5, 1911.

Exceptions from Superior Court, Hillsborough County; Plummer, Judge.

Action by Herman Maynard against the United States Health & Accident Company. Plaintiff nonsuited, and he excepts. Exceptions overruled.

The policy provided that affirmative proof of any injury must be furnished to the defendant within 30 days from the termination of disability, and that no action at law upon the policy should be maintained after six months from the date when proof of the injury must be filed. The plaintiff was injured December 19, 1906, and his disability therefrom terminated May 15, 1907. He filed his proof of claim July 5, 1907, and brought a suit August 25, 1908. The defendant pleaded that the action could not be maintained because it was brought more than six months from the date of the affirmative proof. The plaintiff replied that the defendant had waived its right to interpose that defense. The plaintiff's evidence upon this issue consisted of certain letters which passed between the parties or their counsel. June 18, 1907, the defendant sent to the plaintiff a set of final proof blanks for him to fill out and return. July 10th the defendant forwarded to the plaintiff a draft for an amount much less than he claimed he was entitled to. This was promptly returned. There was some further correspondence in relation to the amount the plaintiff was entitled to, which terminated August 3, 1907, by a letter from the plaintiff's counsel in which he stated that "some time between now and 1st of September I will bring suit."

James A. Broderick, for plaintiff.

John O'Neill, for defendant.

WALKER, J. The provision in the policy limiting the time within which suit must be brought was legal and binding (Davis v. Insurance Co., 73 N. H. 425, 62 Atl. 728; Johnson v. Casualty Co., 73 N. H. 259, 60 Atl. 1009, 111 Am. St. Rep. 609), and the case discloses no evidence that the defendant waived this provision, or that it is estopped to insist upon it.

According to the contract, the plaintiff could maintain no action upon the policy after six months had elapsed from the date when affirmative proof of his disability should be filed. Proof of his disability was due June 15, 1907, but it was not filed with the defendant until July 5th. It is unnecessary to consider whether the defendant had waived the time limit as to the filing of the proof of disability, for there is nothing to show that it waived the provision that suit should be brought within six months after the filing of proof of disability. The policy provided a definite time when the proof should be filed; and the fact that it was not filed at that time had no necessary effect upon the limitation of time for the bringing of a suit. Davis v. Insurance Co., supra.

Although the defendant accepted the plaintiff's proof of disability after the time limited in the policy and may have waived its...