United Ben. Soc. of America v. Freeman

• Decision Date: 13 July 1900
• Citation: 36 S.E. 764,111 Ga. 355
• Parties: UNITED BEN. SOC. OF AMERICA v. FREEMAN.
• Court: Georgia Supreme Court

36 S.E. 764

111 Ga. 355

UNITED BEN. SOC. OF AMERICA v. FREEMAN.

Supreme Court of Georgia

July 13, 1900

Syllabus by the Court.

1. Where a contract of insurance between a benefit society and one of its members, which, among other things, covered accidental injuries, expressly stipulated that "written notice from the member or his representative, and a certificate from the attending physician, each stating the time, place, manner, and nature of injury, *** must be received at the principal office of the society *** within ten days after the date of injury, *** as conditions precedent to recovery," and the insured sustained such injuries, but failed to give the prescribed notice thereof within 10 days from the date of the accident,--it not having been impossible for him to have done so,--the society, in the absence of a waiver on its part of the time limit as to such notice, incurred no liability in consequence of such accident.

2. The facts in this case do not show that it was impossible for the insured to have given the prescribed notice within the time limited. It is therefore unnecessary to decide whether impossibility of giving the notice within 10 days from the date of the injury would be a sufficient excuse for a failure to do so within that period.

3. One cannot be held to have impliedly waived a defense of the existence of which he had no knowledge at the time he did the act which is relied upon as a waiver thereof.

Error from city court of Griffin; E. W. Hammond, Judge.

Action by W. T. Freeman against the United Benevolent Society of America on an accident policy. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Shepard Brown, for plaintiff in error.

Lloyd Cleveland, for defendant in error.

FISH J.

The application of the plaintiff for membership in the United Benevolent Society of America contained the following language: "I also understand that benefits will be allowed only while I am under the care of a duly-accredited physician, and that I must notify the society at the home office, in writing, within ten days from the commencement of disability, in order to entitle me to benefits." The written contract of insurance sued on was expressly made "subject to conditions on the back hereof." On the back of the same, underneath the headline, "Conditions under Which This Certificate is Issued and Accepted," were 14 numbered paragraphs stating the conditions. The first of these was: "Written notice from the member or his representative, and a certificate from the attending physician, each stating the time, place manner, and nature of injury, sickness, or death must be received at the office of the society in Atlanta, Georgia, within ten days after the date of injury, commencement of sickness, or death, as conditions precedent to recovery. Benefits for which the society is liable shall be payable only after satisfactory, direct, and affirmative final proofs have been received by the society in Atlanta, Georgia." As the giving of the prescribed notice within 10 days from the date of the injury was expressly made a condition precedent to the liability of the insurance society, it inevitably follows that, if this notice was not given within the specified time, the society, in the absence of a waiver of the time limit on its part, would not be liable, unless, perhaps, the circumstances followings the injury rendered it impossible for the notice to be given within the 10 days. No written notice of any kind of the injury was given to anybody within 10 days from the date of the injury, and no notice, either verbal or written, was given to any officer or general agent of the defendant corporation until after the 10 days has elapsed. On the day the plaintiff was accidentally hurt, he went to Griffin, to a doctor's office, to be treated, and while there sent for Slaton, the local soliciting agent and collector of the defendant, "and told him to notify the company that [the plaintiff] was hurt," which Slaton promised to do. Slaton, however, forgot to notify the society until more than 10 days had elapsed since the plaintiff received the injury; and when he did notify it he neither stated the time, place, nor the manner and nature of the injury. Even if the notice which he, acting for the insured, gave the insurance society, could be held sufficient in other respects, it was not given within the prescribed time, and therefore could not avail the insured, unless the society waived compliance with the condition as to time. The plaintiff does not contend that the verbal request which he made of Slaton was notice to the defendant corporation of his injury, and it is evident that notice to the mere local and collecting agent of the society at Griffin would not be notice to the society at its home office in Atlanta. The effect of the request which the plaintiffs made of Slaton was that Slaton should act as his agent in notifying the society. Slaton failed to so act until the time prescribed within which to gave the specified notice had expired. So a condition upon which the defendant's liability was defendant was not complied with.

2. The plaintiff contends that, notwithstanding this, the defendant is liable, for two reasons: First, because "plaintiff was totally incapacitated, on account of the accident, from attending to any business, or from...