Wheeler v. London Guarantee & Accident Co., Limited

• Decision Date: 02 July 1934
• Docket Number: 32835
• Citation: 156 So. 420,180 La. 366
• Parties: WHEELER v. LONDON GUARANTEE & ACCIDENT CO., Limited
• Court: Louisiana Supreme Court

156 So. 420

180 La. 366

WHEELER v. LONDON GUARANTEE & ACCIDENT CO., Limited

No. 32835

Supreme Court of Louisiana

July 2, 1934

Rehearing Denied August 3, 1934

Appeal from Fourteenth Judicial District Court, Parish of Calcasieu Thomas F. Porter, Judge.

Action by Lewis A. Wheeler against the London Guarantee & Accident Company, Limited. From a judgment for defendant, plaintiff appeals.

Affirmed.

C. V Pattison, of Lake Charles, for appellant.

McCoy, King & Jones, of Lake Charles, for appellee.

OPINION

ODOM, Justice.

This is an action on an accident insurance policy for 200 weekly installments of $ 12.50 each for partial disability resulting from an accident sustained by plaintiff on March 20, 1931. The policy contains the following stipulations:

"Provision 4. Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing the injury."

"Provision 21. * * * Any failure to comply with the provisions of this policy shall render invalid any claim made hereunder."

The defendant resisted the payment of the claim on several grounds, one of which was that no notice of the accident was given within twenty days as required by the terms of the policy. The trial judge sustained this defense and rejected plaintiff's demands. He appealed.

The trial judge found, in fact it is admitted by counsel, that whereas plaintiff accidentally fell and injured himself on March 20, 1931, he gave the company no notice of the accident until about April 20, or approximately 30 days later. The testimony introduced by the defendant is to the effect that it received no notice of the accident until the month of July. However, plaintiff testified that he had written the company's agent, giving notice of the accident, on or about April 20, and the trial judge accepted plaintiff's statement to that effect, although plaintiff was not able to produce a copy of the letter which he claims to have written, nor was he able to produce any proof that he had written the company's agent on that day.

In the absence of a statute providing otherwise, every insurer has the right to prescribe regulations as to notice and proofs of loss, and a stipulation in an accident policy that in order to entitle insured or his beneficiary to recover thereunder, notice of the accident or injury must be furnished the insurer within a certain specified time, is reasonable and binding on the insured, and failure to give notice as required will defeat recovery, especially if the giving of such notice within the time prescribed is made a condition precedent to recovery. Dennis Sheen Transfer Co. v. Georgia Casualty Co., 163 La. 969, 113 So. 165; Curry v. Universal Life Insurance Co. (La.App.) 150 So. 408; 1 C. J. 471, § 181; Encyclopedia of Insurance Law (Couch) vol. 7, § 1527; 1 Cyc. 274; 14 R. C. L. 1327, § 501.

The policy here involved provides that notice of the accident must be given the company within twenty days from the date of the accident and that "any failure to comply with the provisions of this policy shall render invalid any claim made hereunder."

So that the giving of notice was made a condition precedent to recovery. The plaintiff does not plead that it was impossible for him to give notice within the time prescribed. But he contends that his disability is due to an inguinal hernia which was caused by the accident, but which did not develop until more than thirty days after the accident, and that he gave notice within twenty days from the date on which the hernia developed. It is alleged in the petition and plaintiff testified that the extent of his injury due to the accident could not immediately be determined; that at first he considered his injuries slight, in fact trivial; and that he did not anticipate injurious results. Under such circumstances, his counsel argues that inasmuch as the hernia caused the disability and the accident caused the hernia, it was not necessary to give notice until the hernia developed.

There is ample authority to support the general proposition that the time allowed by policies of this kind for giving notice begins to run only from the day on which the particulars or results of an accident are ascertained, where these are not immediately apparent and there is no reasonable ground for believing that the accident will produce an injury for which damages or compensation might reasonably be claimed. 1 C. J. 475, § 186; 14 R. C. L. 1330, § 503; 1 Cyc. 275; Aubry v. American National Insurance Co., 9 La.App. 385, 120 So. 431.

While we do not hold against these authorities, we do hold that under the facts here disclosed they have no application to this case. The plaintiff had every reason to believe from the moment of the accident that serious results might follow and that liability under the policy might arise. He was supervising the drilling of an oil well and was on the platform when he discovered what he thought was a defect in the "line," and "stepped up on the drum, about four feet above the derrick floor, to inspect the line." He found no defect and turned to get off the drum, when he slipped and fell, his right shoulder striking the drilling stem and "his left side fell across a block of wood lying on the derrick floor."

Counsel for plaintiff says in his brief:

"He suffered pain in his side and back and was forced, on account of the pain, to leave the job and go home. On reaching home he examined himself and found his side inflamed. That afternoon or the following day he visited the office of Dr. Mackie, an osteopath, and consulted the doctor, who treated him for about six to eight weeks. At the doctor's instructions, plaintiff also had home treatment, applying hot towels and hot bottles to his injured side."

Plaintiff, as stated, was supervisor or inspector of the drilling operations. He testified that he was not totally disabled to perform his duties as inspector or supervisor of the drilling operations, but went back and forth to his work. But, to quote again from counsel's brief, "From the moment of his injury, he could only perform his clerical duties and even performance of these were attended with pain and he moved about with difficulty, being unable to climb or lift material to inspect it."

From this it appears that plaintiff was rather badly crippled by the fall. He says, however, that the hernia did not develop until about June 1, more than two months later. While plaintiff could not know, of course, that a hernia would finally result from his injury, yet the injuries from the fall were such as to indicate to any reasonable person that serious...