Travelers' Ins. Co. v. Plaster

• Decision Date: 24 January 1924
• Docket Number: 3 Div. 654.
• Citation: 98 So. 909,210 Ala. 607
• Court: Alabama Supreme Court
• Parties: TRAVELERS' INS. CO. v. PLASTER.

98 So. 909

210 Ala. 607

TRAVELERS' INS. CO. v. PLASTER.

3 Div. 654.

Supreme Court of Alabama

January 24, 1924

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action on a policy of insurance by Margery Plaster, as administratrix of the estate of Dayton Plaster, deceased against the Travelers' Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

Hill Hill, Whiting & Thomas, of Montgomery, for appellee.

SAYRE J.

Plaintiff's (appellee's) intestate was a traveling salesman for a jobbing house in Montgomery. He traveled by automobile. On the night of July 18, 1922, intestate was hurt by a piece of steel broken from a bath tub at De Funiak Springs, Fla. The hurt was about one-half inch in length and one-eighth of an inch wide. Some of the flesh had been "gouged out," as one of the witnesses expressed it, "from under the ball of his foot just back of the little toe." Next morning his shoe was cut, he limped, and complained of pain. He then "headed back towards Montgomery"; but it is not clear whether he came directly from De Funiak Springs to Andalusia or took the more round-about route through Hartford, Slocomb, Malvern, and Geneva. His chauffeur testified that he did not go to as many places as usual and had to be helped out of his car. July 20th intestate drove from Andalusia to Luverne, and on the 21st back to Montgomery by way of Greenville and Ft. Deposit. At Ft. Deposit he took dinner with Mrs. Weaver, an old friend, who testified that "he was crippled. He seemed to have difficulty in getting about. ***" July 21st intestate went to his physician in Montgomery for treatment. He was then trying to walk on his heel. There was pus in the wound. He had treatment for three days and then went out on the road again. His physician testified:

"In my opinion it was not prudent for him to undertake to work at that time as a traveling salesman. I advised him not to do so. In my opinion as a medical man it was not safe for him to continue traveling and walking and doing work, and I so advised him when I first discovered his infection. He could not walk without pain at that time. ***"

But he continued to travel, four or five days in the week, returning to Montgomery each week for treatment, until September 29th. "Every time he would go out the foot would be some better, and when he came back it would be worse." After September 29th he remained at home until October 9th, when he was carried to an infirmary, where he remained until November 9th, and during this time a part of his foot was amputated. He then returned home, but had the frequent attention of his physician, until December 14th, when he returned to the infirmary, suffered another amputation, and on December 27th died from the effects of blood poison. No reason appears why the deposition of the medical witnesses, that plaintiff's intestate died as a result of pus infection, or blood poison, permeating his system from the wound in his foot, should be doubted. This statement of the facts-abbreviated, of course-is made in view of defendant's (appellant's) contention that it was entitled to the general affirmative charge, or, in any event, that its motion for a new trial should have been granted. There was no conflict in the evidence except as to the question-and that not of great importance-whether on the day after his hurt plaintiff's intestate went directly from De Funiak Springs to Andalusia or by way of Hartford, Slocomb, Malvern, and Geneva. However, without this conflict, the ultimate question of litigated fact, viz. whether the wound suffered by plaintiff's intestate at De Funiak Springs, "wholly and continuously," within the meaning of the policy of accident insurance which he carried in defendant company, "disabled him from performing any and every kind of duty pertaining to his occupation" from the date of his injury to the time of his death-this question was one of inference and, as against plaintiff at least, was one proper to be submitted to the jury for decision.

Plaintiff, as administratrix, sued on intestate's policy of accident insurance. Defendant pleaded the general denial and specially-briefly to state the effect of plea 7-that plaintiff's intestate had not complied with a condition of liability provided by the policy in that, for an unreasonable time, to wit, more than two months, he failed and neglected to give defendant notice of his injury. Plaintiff replied by the general replication and specially that the condition had been waived.

In its schedule of indemnities the policy provided:

"Death, dismemberment and loss of sight-single indemnity.

"Part A. If such injuries" (meaning accidental injuries) "shall wholly and continuously disable the insured from the date of accident from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability, but within two hundred weeks from date of accident, shall result independently and exclusively of all other causes in any one of the losses enumerated in this part, or within ninety days from the date of the accident, irrespective of total disability, result in like manner in any one of such losses, the company will pay the sum set opposite such loss and in addition weekly indemnity as provided in part B to the date of death, dismemberment, or loss of sight."

Defendant's first contention is that the trial court erred in overruling its demurrer to plaintiff's second special replication. This ruling of the court may be justified on two or more grounds:

1. In 4 Cooley's Briefs on the Law of Insurance, 3531, it is said that-

"A failure to give notice or furnish proofs of loss, or defects in the notice and proofs, are waived by a denial of liability on other grounds. This rule is fundamental, and scarcely needs to be supported by the citation of authorities."

However, numerous authorities are cited. The text proceeds: "The same rule obtains under life and accident policies." Numerous other authorities are cited.

There are expressions in some of our cases which would seem to support defendant's proposition that plaintiff's second replication failed to state a case of waiver because it did not affirmatively show that plaintiff incurred the expense alleged and went to much trouble in and about the collection of the amount due under the policy for the reason that defendant had placed its denial of liability on the specific different grounds stated above or that such denial resulted in expense and trouble to which otherwise plaintiff would not have been put; in short, that the replication failed to show, quoting language to be found in Cassimus v. Scottish Union, 135 Ala. 256, 33 So. 163, "that the plaintiff was misled to his injury by the claim of nonliability on the particular ground stated." And it must be conceded that there are decisions in other jurisdictions to the effect that the notice stipulated for is an absolute condition of liability...