Woodall v. Fidelity & Cas. Co.

Decision Date14 November 1908
Citation62 S.E. 808,131 Ga. 517
PartiesWOODALL v. FIDELITY & CASUALTY CO.
CourtGeorgia Supreme Court

Syllabus by the Court.

Where a health indemnity policy provided for liability of the insurance company for a specified amount per week during the disability of the assured resulting from certain diseases for a period not exceeding 26 weeks, and that the medical adviser of the company had the right to examine the assured during such disability, and further provided that immediate notice should be given the company of any disease causing such disability, and of the full name and address of the assured held, where the disability continues for the full period of 26 weeks, and there is a failure to give such notice during such period, and no excuse for such failure is given, there can be no recovery on account of such disability.

[Ed Note.-For other cases, see Insurance, Cent. Dig. §§ 1333-1336; Dec. Dig. § 539. [*]]

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by Mary Woodall against the Fidelity & Casualty Company. Judgment for defendant, and plaintiff brings error. Affirmed.

J. F Golightly, for plaintiff in error.

Slaton & Phillips, for defendant in error.

HOLDEN J.

The plaintiff brought suit against the defendant, a corporation of the state of New York, with its main office located in the city of New York, on a policy of insurance issued by the defendant to the plaintiff's husband, alleging that on the 10th of April, 1906, her husband was afflicted with cirrhosis of the liver, which totally disabled him from performing any of the duties of his occupation from that time to the 16th of November, 1906, when he died. Within three weeks thereafter she went to the person in charge of the company's business in Atlanta, and informed him of the disability above named and the liability of the defendant. He afterwards furnished her a blank on which to make out a claim of loss, which she filled out, making out her claim, proof of loss and notice of disability. He stated he would attend to the matter. The policy attached to the petition provided that if the assured suffered from cirrhosis of the liver or other specified diseases, which disabled him from performing any duty pertaining to his occupation, the company would pay to him a weekly indemnity of $25 per week during the period of such disability during which he was necessarily confined to the house "for not less than 7 consecutive days and not exceeding 26 weeks." The policy further provided as follows: "Any medical adviser of the company shall be allowed to examine the person or body of the assured in respect to any alleged disease or illness in such manner and at such times as he may require. Immediate written notice must be given the company at New York City of any disease or illness for which a claim is to be made, with full particulars thereof, and full name and address of the assured. Affirmative proof of duration of disability must also be furnished to the company within two months from the termination of disability. *** An agent has no authority to change this policy or to waive any of its provisions, nor shall notice to any agent or knowledge of his or any person be held to effect a waiver or change in this contract or in any part of it.

No change whatever in this policy and no waiver of its provisions shall be valid unless an indorsement is added hereto signed by the president or vice president or one of the secretaries of the company expressing such change or waiver." The plaintiff claimed that under the terms of the policy she was the beneficiary thereof, and brought suit to recover the indemnity provided for of $25 per week for 26 weeks. To the petition the defendant filed a demurrer, and to the order of the court sustaining the demurrer and dismissing the petition the plaintiff filed exceptions.

1. One of the grounds of demurrer was that the petition set forth no cause of action, and another ground of demurrer was that the "provisions as to notice were not complied with, nor was there any excuse therefor; the said violation and the absence of excuse therefor appearing from plaintiff's declaration." The requirement in the policy that immediate written notice must be given the company at New York City of any disease or illness for which a claim is to be made is of the essence of the contract, and must be complied with before any recovery can be had. Employers' Liability Assur. Corp., Lim., v. Light Heat & Power Co., 28 Ind.App. 437, 63 N.E. 54; London Guarantee & Accident Co., Lim., v. Siwy, 35 Ind.App. 340, 66 N.E. 481; Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S.E. 821, 52 L.R.A. 70, 78...

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