American Assurance Co. v. Dickson

SMITH, P. J. Notwithstanding condition No. 11 of the policy of insurance sued upon in this case providing that “Legal proceedings upon this policy shall not be brought until after three months from the date of filing final proofs at the home office of the company, nor brought at all unless commenced within twelve months from the time when the right of action shall arise” the court is of the opinion that this action was not prematurely instituted. The evidence discloses that the company accepted proof of loss from defendant in error, treated the same as final and offered to pay a certain amount thereon, but not the full amount claimed. This amounted to a rejection of the claim, and having thus determined, defendant in error was not called upon to delay his action further. [315] The construction placed by the trial court, in its charge to the jury, upon the clause in the policy relating to sickness indemnity (house confinement) we think was correct. This clause provides as to total disability, that the insured shall be “strictly, necessarily and continuously confined within the house and there regularly and personally attended by a legally qualified physician, not to exceed a period of twenty-six consecutive weeks.” The fact that the insured under the advice of his physician went out for air, and to his physician’s office for treatment, could not, we think, defeat his right of recovery within the meaning of this provision. Any other construction would be unreasonable. The conduct of the insured in this respect in obeying his physician was essential to his recovery, and acting in good faith he is entitled to his indemnity. Hoffman v. Hospital Assn. 128 Mich. 323, 329 [87 N. W. Rep. 265; 54 L. R. A. 740]; Scales v. Protection Assn. 70 N. H. 490 [48 Atl. Rep. 1084]; Mutual Benefit Assn. v. Nancarrow, 18 Colo. App. 274 [71 Pac. Rep. 423]. There being no error in the record the judgment is affirmed. Swing and Jones, JJ., concur.