Whalen v. Equitable Accident Co.

• Decision Date: 14 November 1904
• Citation: 99 Me. 231,58 A. 1057
• Parties: WHALEN v. EQUITABLE ACCIDENT CO.
• Court: Maine Supreme Court

58 A. 1057

99 Me. 231

WHALEN

v. EQUITABLE ACCIDENT CO.

Supreme Judicial Court of Maine.

Nov. 14, 1904.

(Official.)

Exceptions from Bangor Municipal Court.

Action by Thomas H. Whalen against the Equitable Accident Company. Judgment of nonsuit, and plaintiff excepts. Exceptions overruled.

Argued before EMERY, WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

A. L. Blanchard, for plaintiff.

Lewis A. Barker, for defendant.

SAVAGE, J. Action on a health policy issued to the plaintiff July 10, 1903, whereby he was insured for the loss of time resulting from the sickness caused by various diseases, among which was acute dysentery. The policy contained the following provision:

"This policy is Issued by the company, and signed by the insured subject to the following provisions and conditions:

"(C) Notice of the beginning of any sickness for which claim is to be made under this policy, shall be given in writing, addressed to the secretary of the company at Boston, stating the full name and address of the insured, with full particulars of the sickness including the date of beginning and an accurate description of the sickness; and failure to give such written notice within ten days of the date of the beginning of any sickness shall invalidate any and all claims under tills policy."

The plaintiff fell sick with acute dysentery October 1", 1903, during the life of the policy, and continued sick until April 4, 1904. The parties agreed that he was regularly committed to the Eastern Maine Insane Hospital November 7, 1903, and it is a reasonable presumption that he was then insane. It does not appear how long he remained so, nor does it appear when he first became insane, nor how long he had been insane at the date of the commitment.

No notice was given to the company or any of its agents concerning the plaintiff's sickness, or his claim for insurance under the policy, until December 30, 1903. By the terms of the policy the failure to give notice within 10 days of the date of the beginning of any sickness invalidated all claims under it. This condition was a valid one. Heywood v. Accident Association, 85 Me. 289, 27 Atl. 154, and the plaintiff must fall to recover unless he shows some legal excuse for the failure to give the notice required by the contract. Kimball v. Accident Association, 90 Me. 183, 38 Atl. 102. And the burden of proof is upon the plaintiff. He seeks to sustain that burden of proof in this way. He claims that by force of Pub. Laws 1895. p. 43, c. 46, the time within which notice might be given was extended from 10 days to thirty days, so that a notice given within 30 days after he began to be sick would be sufficient. He claims that he had all of the 30 days in which to give the notice, and that before that period expired he became insane. And his insanity, it is argued, legally excused the giving of the notice.

Whether the insanity of an insured person excuses the performance of the contract as to notice on his part is a question which we have no occasion to consider, and do not decide, for the plaintiff's case fails before we reach it. Unless the time of giving notice was extended by the statute to 30 days, as is claimed, the effect of the plaintiff's insanity is of no consequence. Unless the statute applies, he must stand by the contract. He became sick October 17th. The 10 days within which he was required by the policy to give notice, expired October 27th. There is no proof that he was insane until November 7th. All men are presumed to be sane. That presumption continues until the contrary is proved. Weston v. Higgins, 40 Me. 102; State v. Lawrence, 57 Me. 574. He who claims that a person previously sane became insane, or was insane, at any particular point of time, must prove it. There is nothing in this case to show that the plaintiff was not sane during the entire period of 10 days from the beginning of his sickness. It follows, even upon the plaintiff's own theory, that his claim became invalidated by failure to give notice within 10 days, unless the statute referred to afforded him a longer time, and until after he became insane.

The statute of 1895 (Pub. Laws 1895, p. 43, c. 46) provided that: "No conditions, stipulations, or agreements contained in any application for insurance in any foreign or domestic casualty or accident insurance company, or contained in any policy issued by any such company, or in any way made by any such company, limiting the time within which notice of the accident or injury, or death, shall be given to such company, to a period of less than thirty days after the happening of the accident or injury, or death, shall be valid. Said notice may...