Whiteside v. North American Accident Ins. Co. of Chicago

• Citation: 93 N.E. 948,200 N.Y. 320
• Parties: WHITESIDE v. NORTH AMERICAN ACCIDENT INS. CO. OF CHICAGO.
• Decision Date: 03 January 1911
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 320

93 N.E. 948

WHITESIDE

v.NORTH AMERICAN ACCIDENT INS. CO. OF CHICAGO.

Court of Appeals of New York.

Jan. 3, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by William J. Whiteside against the North American Accident Insurance Company of Chicago. From a judgment of the Appellate Division (119 App. Div. 915,104 N. Y. Supp. 1150) reversing a judgment dismissing plaintiff's complaint and directing a judgment for him in the amount demanded in his complaint under a stipulation made by the parties, defendant appeals. Reversed.Safford E. North, for appellant.

Francis T. Moynihan, for respondent.

HISCOCK, J.

This action was brought on a policy of insurance issued by the appellant, whereby, amongst other things, it agreed to pay to the insured a certain sum each week during sickness. The policy is not set forth in full; but the complaint alleges that it contained ‘a provision that written notice from the insured or his representative stating the time, place, and nature of injury, or death, or commencement of sickness, must be mailed to the secretary of the company at its home office * * * within 10 days after the date of such injury, death, or commencement of such sickness, as conditions precedent to recovery.’ Said complaint, after further alleging that the respondent, on November 13, 1904, and thereafter, was sick for the period of a month to a degree and in a manner which brought him within the terms of the policy, contains this important allegation: ‘And the plaintiff further alleges that during the early part of said sickness he was delirious and unable to remember that he had said policy of insurance, and had wholly forgotten that fact until about the 10th day of December, 1904, when he caused notice to be sent to the defendant of such sickness,’ and the defendant repudiated liability because of failure to serve notice of sickness in accordance with the terms of said policy.

The question which has been argued is whether or not the insured was relieved from compliance with the terms of his policy requiring service of notice as above stated by reason of mental and physical inability to prepare and serve the same within the time specified. This question is presented to us by means of a procedure somewhat out of the ordinary course. Originally appellant seems to have answered in the case; but it appears by stipulation subsequently made that this answer was withdrawn and the case ‘submitted on the facts stated in the complaint as upon application for judgment.’ Therefore the query practically is whether the complaint sets forth a cause of action in view of the facts appearing therein concerning the failure of respondent to serve or cause to be served the notice which has been mentioned.

There is no dispute that the insurer might and did make it a substantial provision of its contract of insurance and a condition precedent to recovery that it should within a specified time be notified of any sickness of the insured for which he expected to make a claim under his policy. This was a condition which was not only lawful, but which we can readily see was only a reasonable and suitable protection to the companyagainst fraudulent claims. It is, however, urged that an insured might be, and in this case was, relieved from compliance with this provision by a physical and mental condition which precluded such compliance by him. Some question is made and fairly arises on the allegations of the complaint whether the insured was delirious, and therefore unable to remember the terms of his policy of insurance down to the date when he finally did cause notice to be served; but I shall assume for the purpose of this discussion that the complaint does allege such condition, and therefore such excuse for nonaction on his part.

In most cases of possible municipal liability for negligence, statutory provisions require as a condition precedent to recovery that notice of claim shall be served and action commenced within a certain time after the injuries are alleged to have been received, and in actions brought to enforce such liabilities it has been held that physical and mental disability may operate as an excuse for failure on the part of the injured person to act within the time specified by the statute, provided he does act with promptness after the disability has ceased. Sometimes a notice otherwise late has been said under these circumstances to be a substantial compliance with the statute, and at other times it has been written in substance that the statute should not be construed as requiring impossibilities, and therefore inability to serve notice should until removed be a sufficient excuse for not serving it. Walden v. City of Jamestown, 178 N. Y. 213, 216,70 N. E. 466;Green v. Village of Port Jervis, 55 App. Div. 58,66 N. Y. Supp. 1042;Forsyth v. City of Oswego, 191 N. Y. 441, 84 N. E. 392,123 Am. St. Rep. 605.

It is to be observed, however, that in these cases the court was dealing with an exaction and burden placed on a claimant without his consent by statute. That is not this case. Here the parties by their free and voluntary action have entered into a contract by which each has assumed certain obligations. The insurance company has agreed to make certain payments on account of sickness, and the assured as a condition precedent to the enforcement of such obligation has agreed to the payment of certain premiums and to the service of the notice in question, which might have been prepared and served by some one else in his behalf if he was incapacitated from personally doing it. All of these provisions and engagements enter into the substance of the contract which respondent is seeking to enforce, and under such circumstances the courts will not relieve either party under the conditions here presented from...