Woodmen's Acc. Ass'n v. Byers

• Decision Date: 16 October 1901
• Citation: 87 N.W. 546,62 Neb. 673
• Parties: WOODMEN'S ACC. ASS'N v. BYERS.
• Court: Nebraska Supreme Court

62 Neb. 673

87 N.W. 546

WOODMEN'S ACC. ASS'N

v.BYERS.

Supreme Court of Nebraska.

Oct. 16, 1901.

Syllabus by the Court.

1. Forfeitures are not favored, and in contracts of insurance a construction resulting in a loss of the indemnity for which the insured has contracted will not be adopted, except to give effect to the obvious intention of the parties. Insurance Co. v. Holcombe, 78 N. W. 300, 57 Neb. 622, 73 Am. St. Rep. 532.

2. In construing conditions of a policy of insurance, to be complied with subsequent to an event resulting in loss or injury for which indemnity is claimed, with respect to the giving of notice of the loss or injury, and preliminary proofs thereof, a more liberal construction will be given in favor of the beneficiary than when the conditions are to be complied with prior to loss or injury for the purpose of continuing the policy in force and effect.

3. Provisions as to the time in which the notice is required to be given of a loss or injury for which indemnity is claimed are not necessarily and in every instance to be literally complied with, in order to prevent a forfeiture of the policy.

4. A reasonable and natural construction will be given such provisions, in order to carry out the evident intention and manifest purpose of the parties to the contract, and the object to be accomplished thereby.

5. When a time is fixed in a policy of accident insurance for the giving of the notice of an accident and injury resulting therefrom for which indemnity is claimed, with the particulars thereof, which is reasonable in its character, this will ordinarily be regarded as a condition precedent to be complied with before a recovery can be had.

6. But when, because of circumstances and conditions surrounding the transaction, obstacles or causes exist preventing and rendering impossible the performance of the act within the time stipulated, the act may be performed thereafter, and the beneficiary will be excused for the failure, if done within a reasonable time, or within the time stipulated after the obstacle or cause preventing prior compliance ceases to exist; the question of the sufficiency of the excuse offered, and the reasonableness of the time in which the act is performed, to be determined according to the nature and circumstances of each individual case; the beneficiary in all cases being required to act with diligence, and without laches on his part.

7. Where a person suffered a fall by accident, resulting in a concussion of the brain, which deranged and crazed his mind so that he could not intelligently give the notice and required information regarding the accident and injury within the time stipulated, this fact excuses him, in law, from compliance with the conditions of the policy in that regard during the time of the existence of the disability.

8. Evidence examined, and found sufficient to support the finding of the jury.

Error to district court, Saline county; Hastings, Judge.

Action by Walter D. Pratt against the Woodmen's Accident Association. On the death of plaintiff, action revived in the name of J. W. Byers. Judgment for plaintiff, and defendant brings error. Affirmed.

Talbot & Allen, for plaintiff in error.

A. S. Sands and Geo. H. Hastings, for defendant in error.

HOLCOMB, J.

Plaintiff (defendant in error) was the holder of an accident policy of insurance in defendant company (plaintiff in error). Having suffered an accident on the 17th day of October, 1895, resulting in an injury totally disabling him from pursuing his ordinary business or occupation for a considerable period of time, and partially disabling him for yet a further period, the plaintiff brought an action against the defendant to recover on the policy of insurance according to its terms and conditions. For answer to the petition of the plaintiff, the answer alleges “that it [defendant company] is not liable to the plaintiff and is not indebted to the plaintiff in any sum on account of any pretended injury received as stated in plaintiff's petition or otherwise, because in said certificate issued by the defendant to the plaintiff, and sued on herein, it is there stipulated that, as a condition precedent to any liability thereunder, the plaintiff shall give a written notice to the defendant at its home office in Lincoln, Nebraska, of any injury received for which indemnity is claimed, within ten days from date of such injury, and that plaintiff failed to so notify said company, and said company did not receive any notice of said injury for a long time subsequent to the expiration of said ten days.” To the defense thus pleaded the plaintiff alleges in his reply that “by reason of said injury, and as a direct result thereof, he became and was sick and distempered in mind and body, so much so that he was entirely deranged, out of his head, and crazy from the time he received his said injury for more than four months next thereafter ensuing, and was sick in body as well, and was confined to his house, wholly unable to attend to or transact any kind of business, or to give any direction or advise with any person concerning the same; that neither his wife nor any other member of his family knew of the existence of said policy mentioned and described in plaintiff's petition, and by a mere accident the wife of this plaintiff, on or about the 25th day of November, 1895, in looking over some of his papers, found the same, and caused forthwith a notice in writing to be given said defendant of such accident, the time when it was received, and the particulars concerning the same, as is in said policy provided, whereupon said defendant at once denied all liability on said policy, and assigned as the sole and only reason therefor that the notice had not been given within ten days from the date said injury was received, when in truth and in fact this plaintiff, by reason of his said injury, and as a direct cause thereof, was crazed and deranged and bereft of all reason and power to give said defendant said notice, but that said notice was so as aforesaid duly given so soon as the said policy was found, and while this defendant was still bereft of sense, and by reason of his said injury, and before he had recovered his reasoning faculties.” On the issue thus raised by the pleadings a trial was had to the court and jury, resulting in a verdict and judgment in favor of plaintiff for the sum of $265.41. Defendant prosecutes error.

But two questions are presented for consideration and argued in the briefs of counsel, and they are: First, are the terms of the policy of indemnity as to notice to be given the company by the assured in case of accident and injury to him to be construed literally, and to be actually complied with in the time stated as a condition precedent to a right of recovery? and, second, if not, is the evidence sufficient to sustain the general finding of the jury that plaintiff was excusable in the present instance from the time of the accident until the notice was actually and in fact given?

The accident occurred on the 17th of October, and the notice thereof was mailed to the defendant on the 29th of November following, and received by it on the 30th, when acknowledgment thereof was made, and the claim of plaintiff denied and declined because the notice was not given within 10 days, as provided by the terms of the policy. The provision is as follows: “Written notice shall be given the said association at Lincoln, Nebraska, within ten days of the date of the accident and injury for which claim to indemnity or benefit is made, with full particulars thereof, including statement of the time, place, and cause of accident, the nature of the injury and the full name and address of the insured and beneficiary, and unless such notice and statement is received as aforesaid, all claims to indemnity or benefit under this certificate shall be forfeited to this association.”

The defense is purely technical. The risk assumed by the insurer has not been increased or in any wise jeoparded by the failure of the insured to comply literally with the provisions for notice of the accident and the injury flowing therefrom. The insurer has received the stipulated consideration for the indemnity contracted for, and which the insured should not be deprived of after he receives an injury, save for his violation of the letter and spirit of the contract in respect of subsequent conditions to be performed, as contemplated and intended by the parties thereto, under well recognized and established rules of construction of contracts of the kind under consideration. A company of this character, organized for the purpose of providing indemnity to those suffering injury and loss from accident, should, and, we assume, does, have a higher mission than merely the collection of revenues. If the provision quoted must under all circumstances, and regardless of conditions, be absolutely and strictly complied with according to the letter thereof, then the contract can only be regarded as a snare and pitfall sure to entrap the unwary and deprive them of the protection and indemnity contracted for on their part in the best of faith and honesty of purpose. If the contract is legally incapable of any other construction than that contended for, requiring a literal and exact compliance as a condition precedent to be performed in the time mentioned, then if for 11 days the insured is irrational and deranged in his mind as a result of the accident, as he appears to have been, and therefore incapable of complying with this provision, he would be altogether debarred from relief, and the failure would, on legal principles, be as fatal as would be the case if the time were 44 days, as in the present instance. Such a construction would be shocking to our sense of justice, unconscionable, and unreasonable. There is, presumably, pervading every contract a reason, based upon something substantial, capable of conception and analysis by the human mind,...