Graves v. Order of United Commercial Travelers of America

Winslow, C. J. The question is a new one in this court in fact we find no exact parallel for it in any court. This court has held that such a clause as is here in question should be read with an exception saving the rights of an insured person who was totally incapacitated by unconsciousness from complying with it during the whole period (Comstock v. Fraternal Acc. Asso. 116 Wis. 382, 93 N. W. 22), and that the words “immediate notice,” in case of a claim for a death loss, means as soon as practicable after the beneficiary obtains knowledge of the death of the insured. Cady v. Fidelity & C. Co. 134 Wis. 322, 113 N. W. 967. Both cases are founded upon the principle that a contract stipulation should not be construed so as to require the giving, of a notice before it is possible to do so. It is manifest that neither case is controlling here. The plaintiff knew he had received an injury and was physically able to give the notice, but did not do so because he thought it trivial. More than this, however; on the ninth day after-the injury and while he still had ample time to “send a notice” as required by his contract, he learned that the injury was serious and had produced his disability. We do not suppose it would be claimed that, if he had learned this for the first time on the fourth or fifth day, the ten-day period would have been extended another ten days. Certainly this would not be reasonable, for in such case the ten-day limitation would amount to little. In all cases of minor injuries resulting seriously in the end the insured would have an easy method of escaping from his contract. . If the insured neither knew nor had reasonable ground for-believing that his wound was other than trivial until after the expiration of the ten-day period, a different question [430] would be presented upon which the authorities seem to be in conflict. Hatch v. U. 8S. C. Co. 197 Mass. 101, 83 N. E. 398, 14 L. R. A. N. s. 503; U. S. C. Co. v. Hanson, 20 Colo. App. 393, 79 Pac. 176. See, also, Phillips v. U. 8S. Ben. Soc. 120 Mich. 142, 147, 79 N. W. 1. We intimate no opinion either way on this question. We are well convinced, however, that, in a case like the present, where the insured was fully informed of the serious nature of the injury within the ten-day period and was entirely able to give the notice and had ample time to give it before the expiration of the period, he must be held to be bound by the literal terms of his contract. It is not a case of •construing a contract so that it requires the impossible. By the Oourt. — Order affirmed.