Hefner v. Fidelity & Casualty Co. of New York

HARPER, C. J. Appellant filed this suit Mlarch 23, 1912, to recover on an accident insurance policy for total disability not exceeding 300 weeks, at $25 per week, as an attorney at law, alleging that the accident happened about August 20, 1909. ' The defendant, answering, pleaded that the policy upon which plaintiff sought to recover provided, first, that written notice should be given to the company as soon as might be possible, .together with full particulars; that this provision was a condition precedent to the right of recovery; that at least six months had elapsed after the alleged accident before notice was given. Further pleaded that the policy provided that legal proceedings could not be brought on the policy before the expiration of three mouths from the date of filing final proofs, and not at all unless begun within six months from the date specified for filing final proofs, and, further, that plaintiff filed his notice many months after the accident, and that he filed no affirmative proof of disability. Defendant further alleged that the policy insured against bodily injury sustained through accidental means, resulting independently and exclusively of all other causes in immediate, continuous, and total disability that prevents the assured from performing any and every kind of duty pertaining to his occupation, and that plaintiff’s injuries did not come within this clause of the policy, therefore he should not recover. The parties announced ready for trial before a jury, and the evidence introduced, whereupon the court instructed a verdict for the defendant, and the only assignment of error which can be considered charges that this peremptory charge is such an error as to require a reversal of the case. The question, therefore, for this court to pass on is, Did the plaintiff, by his pleading and proof, make a prime facie case against the defendant? The portions of the policy, and all the evidence essential to this opinion we quote as follows: “The Fidelity and Casualty Co. of New York * * * does hereby insure the person herein called assured, against: Bodily injury sustained during the term of one year from date of this policy- * * * resulting directly, independently and exclusively of all other causes, in (a) immediate, continuous and total disability, that prevents the assured from performing any and every kind of duty pertaining to his occupation; (b) immediate *331 (as respects tlie injury or as respects preceding total disability) and continuous partial disability that prevents the assured from performing fully work essential to the duties of his occupation * * *. “Accident Indemnities. “Total Disability. “Art. 1. If the assured suffers total disability, the company will pay the assured for the period of the said total disability, not exceeding two hundred ' weeks, twenty-five dollars a week.” “Art. 3. If the assured suffers total disability for a period of two hundred weeks, and if the bodily injury causing the said total disability does not result in a loss named in the table of article 4, nor in a loss covered under article 9 or 10 but continuously after said period of two hundred weeks totally disables and prevents the assured from performing any and every kind of duty pertaining to his occupation, the company will pay the assured, so long as the assured continuously suffers said disability subsequent to two hundred weeks and is under seventy years of age, six dollars, and twenty-five cents a week.” “Art. 9. If the assured suffers total disability and if during the period of said total disability and within ninety days from the date of the accident the bodily injury causing the said total disability results directly, independently and exclusively of all other causes, in permanent paralysis whereby the assured is permanently unable to engage in any work or occupation for wages or profit; and if the assured survives the said paralysis for a period of one year and at the end of said period is declared by competent medical authority satisfactory to the company to be permanently paralyzed and by reason of the said permanent paralysis to be permanently unable to engage in any work or occupation for wages or profit; the company will pay the assured, in addition to the weekly indemnity to which he may be entitled under article 1, one thousand two hundred and fifty dollars. “Art. 10. If the assured suffers total disability, and if during the period of said total disability and within six months from the date of the accident the bodily injury causing the said total disability results directly, independently and exclusively of. all other causes, in incurable insanity, and if within the said period of six months the assured is committed by the proper authorities on account of the said insanity to a state or licensed asylum for the insane and is there continuously confined for a period of two years, and within thirty days after the expiration of the said period of two years is declared by competent medical authority satisfactory to the company to be incurably insane and by reason of such insanity to be permanently unable to engage in any work or occupation for wages or profit; the company will pay to the person or persons duly authorized to receive the money on behalf of the assured, in addition to the weekly indemnity to which the assured may be entitled under article 1, one thousand two hundred and fifty dollars.” “Art. 17. If the assured suffers total disability for a period exceeding three months, the weekly indemnity to which the assured may be entitled under article 1, 3, or 4, for any part of the entire period (provided such part is not less than three months) shall be payable upon the assured’s filing affirmative proof of total disability and of the duration thereof for each part of the entire period for which claim is made. Proofs covering the entire period of total disability must be filed as hereinafter set forth. “Art. 18. Written notice of an accident on account of which a claim may be made must be given to the company at its home office in New York City, as soon as may be reasonably possible, together with full particulars thereof and the full name and address of the assured. Like notice of bodily injury or death on account of which a claim is to be made must be given to the company as soon as may be reasonably possible after the occurrence of the accident causing such bodily injury or death. Affirmative proofs in writing must be filed with the company as follows: “Section 1. Accident Claims. — Affirmative proofs of death, dismemberment, loss of sight, total or partial disability, and the duration thereof, must be filed with the company within two months from the time of death or of dismemberment or of loss of sight or of the termination of the period of total or partial disability for which claim is made. Affirmative preliminary proofs under articles 9 and 10, must be filed with the company within two months from the date of the beginning of paralysis or insanity and affirmative final proofs under said articles must be filed with the company within two months from the date of the final examination required under said articles. “Art. 19. Legal proceedings for recovery hereunder shall not be brought before the expiration of three months from the date of filing final proofs at the company’s home office, nor brought at all unless begun within six months from the date specified herein for final proofs. If any limitation set forth in this and the preceding article is prohibited by the statutes of the state in which this policy is issued, the said limitation shall be considered to be amended to agree with the minimum period of limitation permitted by such statute.” “Art. 23. The terms, bodily injury, total disability, partial disability, dismemberment, loss of sight, and death, are defined in the insuring clause, and as so defined shall be understood wherever used in this policy.” T. J. Hefner, plaintiff, testified: “I live in Reeves county, Texas. My occupation is that of lawyer. I happened to an accident August 20, 1909, at my home in Pecos, Tex. *332 Some carpenters were raising my liouse several inches and had dug and left a hole uncovered; that evening after dart, in going to a hydrant in the yard for water, 1 stepped, with my left foot, into this hole and went down with considerable force; when X straightened up I felt a keen pain in my left side, just above the hip bone, and for several weeks it was located in left side and hip, but ultimately worked around into my back. It grew worse until July, 1910, when I lost the use of my limbs. I could not say definitely and positively that I realized that my continued suffering and continued pain and ailment was the result of that accident until the latter part of June or first of July, 1910; that is, I did not realize the seriousness of the injury until that time, about 10 or 11 months afterwards. In answer to the question whether or not I attributed, immediately after the accident, the accident itself as the cause of my continued injury and suffering, or to other causes, will say, I always connected the hurt or injury with the accident; it was a case of T will be better tomorrow, and will be all right next week,’ and it went along that way for several weeks before I consulted a physician at all. I think it was in October or November when I went to Dr. Camp’s office and told him how I was affected, and he told me I was suffering from rheumatism and prescribed for me. I took the medicine prescribed until some time in November or December, got no relief, then consulted Dr. Vinsant, told him how I was affected and was suffering, and after examination he told me he thought my trouble was from a wrench or sprain in the lumbar region of the spine. In February, 1910, an osteopath by the name of Wright examined me, and told me that my trouble was due to a wrench or twist in the back, advised me that it was not a serious hurt, and that he thought a few treatments would relieve me. I took his treatment 18 or 20 days. When I left him he told me he thought I would get all right without any more treatment. I returned home, but got no better. Then about the 12th or 14th of April, 1910, I went to Dr. Means in Dallas; he made what I call a pretty thorough examination; he told me he was in doubt about what was the cause of the trouble. I told him to call in another physician or two, and he asked me to wait a few days and let him study my case. After three or four days he told me my trouble was due to nerve tumor or fractured or ruptured nerve. Also he told me that he did not regard the trouble as serious; but at the end of a month or six weeks I was in a worse condition — that is, so far as my injury was concerned — than when I went to Dallas. At the end of six weeks from the time I got to Dallas my left leg gave signs of giving down, and I called his attention to it, and it kept getting worse, and then he told me that he was convinced that my injuries were serious, and said ‘It may be 12 or 15 months, or possibly two years, before you recover.’ That was the last of June or first of July, 1910. Then it was that I realized for the first time the seriousness of my condition, and I gave notice to the insurance company of the injury a short time afterwards. Gave the notice in writing. I had never been advised or apprised prior to this time that the accident really was the cause of the trouble. Understand me, I personally attributed the injury to the accident all the time, but the-doctors took a different view, and so advised me, and I believed what they said. The reason I did not give notice to the company before was at first it was a case of T will be better tomorrow, and will "be all right next week,’ until the pain became se severe, until I consulted a physician, and he told me it was rheumatism, and I thought from the advice of the physician that the trouble was not serious, and did not, as I said, realize how serious it was until Dr. Means’ final diagnosis. As to what extent the accident had totally disabled me from performing any or all of my work as a lawyer, I suffered intense pain in my left side and hip from the time of the accident; could not do anything that required physical exertion, such as stooping, squatting, sitting, getting to my feet, things of that kind. I was unable to do any work in the library, such as looking up and collating authorities, and did not undertake to do any of that sort of work from the time of the injury, and never after that was able to take charge of and conduct the trial of lengthy eases in court. I was frequently present during the trial of cases and assisted so far as I could, but those were some of the things I could not do, and there were a great many things I could not do. And the things I have mentioned were necessary to be performed as a practicing lawyer, and the disabilities have continued on down to the present time, 2½ years. The only way I can now get around at all is in a roller chair, and somebody must push me, and lifted and carried up stairways. The duties of an attorney at law are the preparation of cases for trial, the trial in the courts, giving legal advice, writing contracts, deeds, etc., preparing cases for appeal, writing briefs for appellate courts, and so on. When Dr. Means told me-what he did about the latter part of June, 1910, I sent to I. Reinhardt & Son’s office-in Dallas for an information blank. When I got back to Pecos a few days afterwards I filled it out and mailed it to the company’s-agents at Dallas, together with a letter explaining the delay. I had paid the premium on the policy. I have not been paid anything for the injuries suffered. So far as I know the company made no investigation of the-accident. There was nothing to prevent them doing so.” On cross-examination: “Yes, I stated in my depositions taken in 1912 that the injury resulted in immediate- *333 physical pain of a severe type, so severe that it was difficult for me to walk or sit down or rise to my feet, and that is substantially correct. In answer to the interrogatory, ‘State whether as a result of the «¡aid accident, you have been prevented from performing any and every kind of duty pertaining to your occupation.’ I said ‘Yes, since April, 1910, I have been. Prior to that time and dating from the time of the accident I was not prevented from performing some of the duties required of me. As to others, I was prevented and totally disabled. That I may not be misunderstood, I was able to perform in a way all the duties required of me, except the following: Was unable to do anything that required continuous physical effort or exertion; for that reason, I was unable to do any work in the library, could not look up, examine or collate authorities bearing upon legal questions, was unable single-handed to conduct the trial of important long drawn out cases, was unable to attend court outside of Reeves county, other than in Ward county. I gave notice to the company June 15, 1910. I now live at the place where the accident happened, and lived there when I gave notice. Some of the men who were doing the work on my house at the time of the accident are here in Pecos now, and my family are all still living here, also Dr. Camp and Dr. Vinsant.’ ” The physicians testified that plaintiff was unable to use his lower limbs by reason of injuries to the spine, which could have been caused by stepping in a hole, as described by the plaintiff, and that it could not be caused except from some injury of that special kind. The first question is, In view of the provisions of the policy, and in the light of the evidence, should it be held that appellant was in a state of immediate, continuous, and total disability that prevented him from performing any and every kind of duty pertaining to his business as a lawyer, as a matter of law? Stress is laid upon the clause of the policy which reads: “Insured against bodily injury sustained through accidental means resulting directly, independently and exclusively of all other causes in immediate, continuous and total disability, that prevents the assured from performing any and every kind of duty pertaining to his occupation.” When parties enter into contracts, it must be assumed that they intended that the happening of certain events or contingencies thereafter would create liability. Contracts for which valuable considerations are received must mean something and have effective force. The occupation of a lawyer calls for both mental and physical'exertion. If “total disability” means that he shall literally be totally unable to perform any part of his business, then the accident must cause entire suspension of his mental faculties, and also total loss of physical power to move in the minutest detail of the profession, even to the ability to pick up a book or to turn the leaves thereof if laid on a table in front of him. If this be a proper construction of the words, then in this case the appellant was only insured against death. To interpret the clause in its contractual sense, as defendant seeks to have us do, would render the contract utterly useless to an assured, and would be nothing short, practically speaking, of collecting a premium without rendering anything in return. So equity and good conscience impels the construction that the disability meant is a disability as to the performance of any substantial part of the business. The testimony tends to show that the total disability was “immediate and continuous.” Plaintiff testified that “from the time of the accident I was not prevented from performing all of the duties required of me in my profession, but as to some of them I was totally disabled,” and named the things which he 'was totally unable to do, which is sufficient to raise the issue and to require a charge submitting it to the jury. Appellee contends that no sufficient notice was given, and if the notice was sufficient, then it was not given within the time prescribed by the policy. The undisputed evidence is that a notice in' writing was delivered to the agents of the company in Dallas, Tex., and that it afterwards reached the New York office. Article 18 and section 1 of the policy about quoted in full provide that: “(a) Written notice of an accident on account of which a claim may be made must be given to the company at its home office in New York City, as soon as may be reasonably possible. (b) Affirmative proof of death * * * total or partial disability * * * must be filed with the company within two months from the time of death * * * or of the termination of the period of total or partial disability, for which claim is made. Affirmative preliminary proofs under articles 9 and 10 must be filed with the company within two months from the date of the beginning of the paralysis. * * * ” “Notice of the accident must be given as soon as may be reasonably possible” is the only notice with which we are concerned, and we find the weight of authority to be to the effect that 10 months, as in this case, under all the circumstances, was unreasonable per se. Nax v. Travelers’ Ins. Co. (C. C.) 130 Fed. 985; Continental Casualty Co. v. Waide, 101 Tex. 102, 105 S. W. 35; Suggs v. Travelers’ Ins. Co., 71 Tex. 579, 9 S. W. 676, 1 L. R. A. 847; Dunshee v. Travelers’ Ins. Co., 25 Pa. Super. Ct. 559; Coldham v. Pacific Mutual Life, 2 Ohio S. & C. P. Dec. 314; McFarland v. U. S. Mutual Acc. Ass’n, 124 Mo. 204, 27 S. W. 436; Foster v. Fidelity & Casualty Co., 99 Wis. 447, 75 N. W. 69, 40 L. R. A. 833; Young v. Railway Mail Ass’n, 126 Mo. App. 325, 103 S. W. 557. And that notice in compliance with the policy was a condition precedent to recovery. *334 We, therefore, find that the trial court did not err in instructing a verdict. ⅛ judgment of lower court is therefore affirmed.