Shanebarg v. National Acc. Soc.

• Decision Date: 03 June 1924
• Docket Number: No.18641.,18641.
• Citation: 263 S.W. 512
• Parties: SHANEBARG v. NATIONAL ACC. SOC.
• Court: Missouri Court of Appeals

263 S.W. 512

SHANEBARG v. NATIONAL ACC. SOC.

No.18641.

St. Louis Court of Appeals. Missouri.

June 3, 1924.

Rehearing Denied June 24, 1924.

Appeal from St. Louis Circuit Court; J. Huge Grimm, Judge.

"Not to be officially published."

Action by Abe Shanebarg against the National Accident Society. Judgment for plaintiff, and defendant appeals. Affirmed.

Hudson & Hudson, of St. Louis, for apellant.

Jacob Mailman, of St. Louis, for respondent.

ALLEN, P. J.

This is a suit on a health and accident policy issued by the defendant insurance company to plaintiff on May 10, 1921. The policy by its terms insures the plaintiff against the effects of bodily injuries caused by external, violent, and accidental means, and provides for the payment to plaintiff of an indemnity of 325 per week, for not more than seven consecutive weeks, for loss of time resulting solely from such accidental injuries, if such injuries shall, from the date of the accident, continuously and wholly prevent him from attending to any kind of business; provided such injuries are sustained in the manner specified in certain designated clauses of "section C" of the policy, including clause No. 3 thereof, which is as follows:

"While riding within a conveyance drawn by horse power, provided that the insured shall not then be a hired driver thereof nor be riding or driving in or upon any conveyance containing any merchandise or used for any business purpose or any work whatsoever."

The policy also provides that written notice of the injury on which a claim may be based must be given to the company within 20 days after the date of the accident causing such injury; providing further that failure to give notice within such time shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.

The evidence shows that plaintiff was injured on June 27, 1921, at Third and Morgan streets in the city of St. Louis; the policy being then in force. Plaintiff, who is a peddler and who, it appears, could not speak English well, testified to the effect that on the day last mentioned he had purchased a load of watermelons which were located on the sidewalk on the north side of Morgan street, and that he stopped his wagon on the south side of the street and was carrying the watermelons from the north side of the street and putting them into his wagon; and that while he was carrying two melons, and was about five or six feet from his wagon, he was struck by a ewest-bound "transfer wagon" and injured. According to his testimony, he received injuries to his head and neck, was confined to his bed for about a week, and was not able to work for about two months, during which time he was treated by his physician, Dr. Bassman; and the testimony of a witness for plaintiff tends to show that plaintiff was confined to his room for five or six weeks.

Plaintiff's further testimony is that after he was injured he called up an agent of defendant who came to see him, about four days after the accident, and that he receive from the agent a paper which he did not sign. He said that he received a letter and a blank from the defendant company, and identified a paper shown to him, upon one side of which was a "Notice of Accident," signed by plaintiff, and on the other side a "Surgeon's Notification Blank," signed by plaintiff's physician. It appears that these writings, dated July 18, 1921, were furnished to defendant. In that signed by the physician appears the following question and answer: "How was the claimant injured': Thrown off the wagon." In that signed by plaintiff appears the following: "How did the accident happen? Another wagon pushed my wagon."

It appears that on or about July 28, 1921, defendant wrote to plaintiff inclosing two blanks for proof of loss, one of these being a supplemental report of the accident to be made by plaintiff, and the other a supplemental physician's report; which blanks, having been filled out, were signed by plaintiff and his physician respectively, dated August 3, 1921, and delivered to defendant, In that signed by plaintiff, in reply to a question as to the nature and cause of the disability, the following answer appears: "Face bruised by fall from wagon." And in that signed by the physician, a like question is thus answered: "Falling off the wagon."

Touching the execution of the notice and the supplemental...