Rabb v. North American Accident Ins. Co.
| Citation | 154 P. 493,28 Idaho 321 |
| Parties | JOHN RABB, Respondent, v. NORTH AMERICAN ACCIDENT INSURANCE COMPANY, a Corporation, Appellant |
| Decision Date | 05 January 1916 |
| Court | United States State Supreme Court of Idaho |
PLEADINGS IN JUSTICES' COURTS-NOTICE OF ACCIDENT-PROOF OF INJURY-ADMISSIBILITY AND SUFFICIENCY OF EVIDENCE-CONSTRUCTION OF CONTRACT OF HEALTH AND ACCIDENT INSURANCE.
1. The complaint in this case held to be a sufficient statement of the cause of action to meet the requirements of the law relative to such pleadings in justices' courts.
2. Where the issue framed by the complaint and answer is not as to the contents of a notice of an accident and of proof of an injury, but is as to whether or not such notice was given and such proof was furnished, parol evidence is admissible to establish the giving of the notice and the making of proof of injury although the notice and proof are in writing.
[As to notice of accident within time required under terms of accident insurance policy as condition precedent to recover see note in Ann.Cas. 1914D, 412.]
3. The evidence examined and held to be sufficient to establish the fact that notice of the accident was given and proof of the injury was made.
4. The contract of insurance and the evidence examined and held that the insured is not limited in his recovery to one-third of the principal sum named in the policy, therein mentioned as the amount to be paid, in lieu of any other indemnity, for the loss of one of his eyes, since it appears that, as a result of the accident whereby he lost his eye, he sustained another injury which resulted in his total loss of time and in his continuous inability to engage in any and every kind of business or labor, for which he is entitled to recover as provided in paragraph (c) of the policy.
APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.
Action upon a policy of health and accident insurance. Judgment for plaintiff. Affirmed.
Judgment of the trial court affirmed. Costs awarded to respondent.
W. H Hanson, for Appellant.
Before the insured can recover in this case he must prove either a strict compliance with or a waiver of the requirements by the company.
The requirements of the policy called for both notice and proof of claim, and the giving of either did not relieve the insured from furnishing the other; a failure to furnish either being ground of forfeiture. (O'Reilly v. Guardian Mutual Life Ins. Co., supra; Da Rin v. Casualty Co. of America, 41 Mont. 175, 137 Am. St. 709, 108 P. 649, 27 L. R. A., N. S., 1164; May on Insurance, sec. 460; Joyce on Insurance, sec. 3285.)
Chas. E. Miller, J. H. Wixom and F. C. Robertson, for Respondent.
The proofs filed by the respondent were sufficient to advise the company. (Lampkin v. Travelers' Ins. Co., 11 Colo. App. 249, 52 P. 1040.)
The court will construe words most strongly against the party who used them. (Anson on Contracts (Huffcut), sec. 345; American Surety Co. v. Pauly, 170 U.S. 160, 18 S.Ct. 563, 42 L.Ed. 987.)
The courts will take the intent which is properly construed from the contract itself. (Reed v. Merchants' Mut. Ins. Co., 95 U.S. 23, 24 L.Ed. 348; Anderson v. Aetna Life Ins. Co., 75 N.H. 375, 74 A. 1051, 28 L. R. A., N. S., 730.)
On October 29, 1912, in consideration of five dollars paid to it by respondent and his agreement to pay two dollars per month from and after December 1, 1912, appellant issued to respondent a policy of health and accident insurance containing the following provisions material to the questions presented by this appeal:
The monthly payments of two dollars each were made by respondent to appellant up to and including the month of September, 1913, and on the twenty-fourth day of that month respondent, who was a miner employed in the Bunker Hill mine, met with an accident while engaged in his work, being struck by a quantity of falling rock, which accident resulted in the loss of one of his eyes and the fracture of his right leg, together with lesser injuries.
On March 2, 1914, respondent filed his complaint in the justice's court of Kellogg precinct No. 1, Shoshone county, against appellant praying for judgment in the sum of $ 190, which he claimed to be then due to him under the terms of his policy. No answer was filed in the Justice's court, but the docket shows that one C. A. McKinley appeared for the defendant there. The trial resulted in a judgment for $ 190 and costs in favor of respondent, from which an appeal was taken to the district court upon questions of both law and fact.
In the district court, upon order of the judge permitting him to do so, counsel for appellant filed a demurrer and an answer to the complaint. The demurrer was overruled and this action of the court is assigned as error. The complaint and demurrer are somewhat voluminous, and will not be copied or quoted from at length here.
An examination of the complaint convinces us that it is a sufficient statement of the cause of action to meet the requirements of the law relative to such pleadings which, in justices' courts, may be very informal. Sec. 4666, Rev. Codes, is, in part, as follows:
Sec. 4668, Rev. Codes, provides:
"The complaint in these courts is a concise statement, in writing, of the facts constituting the plaintiff's cause of action; or a copy of the account, note, bill, bond, or instrument upon which the action is based."
The case was tried de novo in the district court by the judge, trial by jury having been waived, and resulted in judgment in favor of respondent in the sum of $ 190, together with interest and costs, amounting in all to $ 232.05, from which judgment this appeal was taken.
The assignments of error, in addition to that relative to the ruling of the court upon the demurrer, present two contentions: 1. That the court erred in finding, as a fact, "that the plaintiff immediately duly notified the defendant company of said accident and furnished the defendant company with due notice and proof of said injury in accordance with the terms of said policy of insurance"; and 2. That the court erred in finding "that there is now due and owing the plaintiff from defendant company according to the terms of said policy of insurance, aforesaid, and for benefit accruing thereunder because of said injury whereby his leg was bruised and broken, the sum of $ 190."
That respondent immediately notified appellant of the accident and furnished due notice and proof of the injury is alleged in the complaint and denied in the answer, although appellant in its answer alleges that respondent filed a claim and that prior to the commencement of the action it tendered to him the sum of $ 38 in settlement as a compromise offer. The direct examination of respondent upon this issue is as follows:
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