Ramsey v. General Accident, Fire & Life Ins. Company

CourtCourt of Appeals of Kansas
Writing for the CourtELLISON, J.
Citation142 S.W. 763,160 Mo.App. 236
Decision Date09 January 1912

Appeal from Pettis Circuit Court.--Hon. H. B. Shain, Judge.


Judgment affirmed.

Harvey D. Dow for appellant.

(1) The meaning of the policy is determined by its terms. They are the test, and that test in the case at bar is (1) "confinement within the house and (2) therein regularly visited by a legally qualified physician." The exact words of the policy set forth above, have been construed a number of times by the courts. Dunning v. Acc Ass'n, 59 A. 535; Cooper v. Acc. & Sick Ben Ass'n, 141 Mich. 478, 104 N.W. 734; Bishop v. U S. Co., 91 N.Y. 176, 99 A.D. 330; Schneps v. Fid. & Cas. Co., 101 N.Y.S. 106; Liston v. Cas. Co., 58 N.Y.S. 1090; Sawyer v. Protective Assn., 73 A. 168; Cas Co. v. Perdue (Ala.), 51 So. 352. (2) Notice to the insurance company is required by the policy. Particular notice to a person at a specified place, is not given until it reaches the person named at the place specified. McCord v. Casualty Co., 88 N.E. 6. (3) Compliance with the terms of a policy cannot be construed into a waiver. Aronson v. Acc. & Plate Glass Ins. Co., 99 P. 537; Brown v. Cas Co., 207 Pa. 609; Foreman v. Ins. Assn., 104 Va. 694; Farmers Assn. v. Kinsey, 101 Va. 236; Hayadorn v. Acc. Assn., 69 N.Y.S. 831; Mech. v. Acc. Soc., 63 N.Y.S. 1008; Wilkie v. Nat'l Council, 66 S.E. 579. Where the health insurance company, after the expiration of ten days from the time a party insured becomes ill, but before it knew the date when he did be come ill, sent blank forms for proof of claim to him to be filled out, such conduct did not constitute waiver on its part of the provision requiring the plaintiff to notify it within ten days from beginning of illness. Whalen v. Accident Co., 58 A. 1057. Requiring proof of loss or strength of illness cannot be construed as a waiver because the proofs were necessary to establish what the loss was. Elhart v. Ins. Co., 92 P. 419, 37 Ins. L. J. 78; Greenwald v. Ins. Co., 102 N.Y.S. 157; McMahon v. Ins. Co., 42 N.W. 179; Acc. Co. v. Watson, 64 S.E. 693; Tuttle v. Traveling Men's Assn., 104 N.W. 1131; McCord v. Cas. Co., 88 N.E. 6; Rooney v. Cas. Co., 184 Mass. 26; Modern Woodmen v. Talbot, 107 N.W. 790.

G. W. Barnett for respondent.

The court committed no error in submitting this case to the jury. The plaintiff was confined within the house and therein regularly visited by a regular, qualified physician. A party need only be confined to his house in a substantial sense. The contract is to receive a reasonable construction. It is not necessary that the plaintiff should remain in the house all the time. To step out of doors now and then or to visit the office of the physician, would not be a violation of the clause of the policy so as to defeat a recovery. Hays v. Benevolent Assn., 127 Mo.App. 200; Hoffman v. Home & Hospital Association (Mich.), 87 N.W. 265; Benevolent Association v. Nancarrow (Col.), 71 P. 423; Turner v. Fidelity & Casualty Co. (Mich.), 70 N.W. 898; Hohn v. Casualty Co. (Mich.), 72 N.W. 1105. By calling for proofs of the illness and by putting plaintiff to trouble and expense in furnishing them and by long and continued negotiations as to the loss by denying liability on the ground that the plaintiff was not confined to his house under the terms of the policy, and by the receipt of the notice without objection at the time of its receipt, or at any other time that the notice came too late, the defendant has waived the necessity of timely notice. Meyers v. Casualty Co., 123 Mo.App. 682; Hohn v. Casualty Co. (Mich.), 72 N.W. 1105; Young v. Railway Mail Association, 126 Mo.App. 325; Dezell v. Insurance Co., 176 Mo. 253; Crenshal v. Insurance Co., 63 Mo.App. 678; Bolan v. Insurance Co., 58 Mo.App. 255; Cohn v. Insurance Co., 62 Mo.App. 271.



Plaintiff is a merchant living in Sedalia, Missouri, and there took out a policy of health insurance. He afterwards was taken sick, on the 19th of March, 1910, in the state of Florida, came home, and continued to be sick for several weeks. Defendant refused to pay his claim, whereupon he brought this action and recovered judgment in the trial court.

The policy contained the following provisions:

"Illness indemnity, at the rate of one hundred dollars per month for the number of consecutive days, after the first week, that the insured is necessarily and continuously confined within the house, and therein regularly visited by a legally qualified physician by reason of illness that is contracted and begins after this policy has been maintained in continuous force for thirty days; . . .

"Written notice . . . of any illness for which claim can be made, must be given to the company at Philadelphia, Pa., within ten days of date of accident or beginning of illness. Failure on the part of the assured of the beneficiary to comply strictly with said notice requirement shall limit the liability of the company to one-fifth the amount which would be otherwise payable under this policy."

When plaintiff's sickness came upon him in Florida, he went to his hotel, had fever, was sick at the stomach and suffering severe pains in his bowels. He went to bed at the hotel and sent for a doctor. The doctor came to his room and prescribed for him and the porter sent out for medicine. The doctor administered certain remedies and soon called again. He took sick on Sunday and on Tuesday morning the treatment having relieved him temporarily, he was able to be up and walk to the office of the doctor. The doctor after giving him further treatment and prescription, recommended him to go home telling him to keep out of the sun and to do no walking or exercise. Plaintiff was taken to the depot in a carriage that was summoned to the hotel for him and was taken to Sedalia, his home, in a Pullman car, where he was driven in a carriage to his home. He remained at home and within the house a few days under the treatment of a doctor. He was at home during all this time, except he was driven in a carriage to see his help at the store, but did not engage in any business and was not able to do so. Whereupon he concluded to go to Kansas City, for the purpose of consulting physicians there and taking treatment. He rode from Sedalia to Kansas City in a parlor car and was able to take a street car to the sanitarium. He met his physicians, who advised an operation. The operation was performed, which was very painful, and in about two or three weeks later a second operation was performed. He secured a room in a hotel nearby. During all the time that he was at Kansas City, he remained in his rooms in the hotel, except each day he went to the sanitarium for treatment, where he was treated daily by physicians. With the exceptions of the times when the operations were performed, he would be out of his room in going to and from the sanitarium and in consultation with the physician, about thirty minutes per day. During all the balance of the time, he was confined to his room all the time, and in bed most of the time. Though the hotel was but a short distance from the sanitarium, he usually was taken there in a carriage, but sometimes he was able to walk. After the first operation had been performed and he had recovered somewhat from its effects--about two weeks after the first operation and while waiting for the second--the doctors advised him to go to his own home where he could sit on the porch, and that getting out of doors in going would be better for him rather than injurious, and that he could go home and remain under their treatment which they had prescribed. He returned home in a parlor car and was taken in a carriage to his house. During all the time that he was at home in Sedalia, he remained confined within his house and was taking the prescription given him by the doctors at Kansas City, except that he sat upon the porch occasionally, it...

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