Guy v. U. S. Casualty Co.

Clark, C. J. Tbis is an action upon a'health-insurance policy, begun before a justice of tbe peace, for eight weeks’ indemnity, at $10 per week, on account of plaintiff’s sickness. Tbe policy requires tbat “written notice of sucb disease be given by tbe insured or bis attending physician to tbe company at its borne office within ten days of its contraction.” In some cases, especially in certain diseases, tbe condition of tbe patient may be such, by reason of bis mental condition or violent physical suffering, that be cannot give the notice. In such cases the rule intimated in Williams v. Casualty Co. (this same defendant), 150 N. C., 598, is that, where tbe patient, on account of bis condition, is unable to give notice, be would be excused, if the failure to give notice is without negligence on bis part. Nor do we think tbat “within ten days of its contraction” can reasonably be construed to mean what tbe defendant contends tbat it does. In many, perhaps most cases, diseases are “contracted” months or years before tbe time when, like an underground river, they come to tbe surface. And, even then, many more than' ten days may pass before tbe disease compels tbe sufferer to quit work or otherwise entitle him to claim benefit under a health-insurance policy. We think the fair and just meaning is that tbe notice must be given “within ten days of tbe beginning of tbat part of tbe illness for which tbe insured claims payment,” so tbat tbe company shall not be liable for more than ten days’ payment prior to the time -\vben it receives notice; tbe object of tbe provision being tbat it may investigate and prevent imposition. In those very rare cases where tbe condition of tbe insured is such that he can neither give notice himself nor ask his physician to do so, failure to give notice is excused. Of course, tbe notice to tbe company may not only be given by tbe physician, but by any relative or friend acting on behalf of tbe insured, though their failure to do so when tbe insured is unable to request it is no bar on tbe insured. In tbe present case tbe plaintiff put in, besides oral testimony, the correspondence between himself and tbe defendant, and the proofs of loss made by himself, tbe affidavit of bis attending *467 physician and the statement of bis employer. It was agreed that tbe judge should find the facts; but, instead of doing so, he sets out the testimony and the above affidavit, statement and correspondence, “all of which the court finds to be true, as stated.” There is irreconcilable conflict. The attending physician’s affidavit is that the plaintiff was "totally disabled for thirty days, from 12 February to 12 March, 1908, during which time he could give no attention whatever to business, and such disability was immediate and continuousHis own affidavit was to the same purport, and this evidence, if true, as the judge found, might have justified the delay in not giving the notice in ten days. On the other hand, there was oral evidence coming from the plaintiff and the defendant’s letters, all likewise found to-be true, which would have justified a different conclusion. The judgment must be set aside. The evidence will be submitted to a jury (unless the parties again agree that the judge may find the facts) and the law applied as herein stated. New trial. HoKE, J., concurs in result.