Moore v. National Accident Society

Fullerton, J.

On November 9, 1899, tbe appellant purchased an accident insurance policy from tbe respondent, by tbe terms of wliicb tbe respondent insured bim for a limited period against tbe effects of bodily injury caused solely by external, violent, and accidental means, agreeing to pay bim, if wholly disqualified from transacting business by any such injury, tbe sum of $25 per week for a period of fifty-two weeks, if bis disability continued so long. ■ Among tbe conditions of tbe policy was one to tbe effect that a failure, on tbe part of tbe insured or bis beneficiary, to give notice to tbe company *32 of an injury to the insured, for a period of ten days after the injury occurred, should invalidate the policy. The appellant was injured and totally disabled while the policy was in force, and, when he demanded payment for his loss, was met with a refusal on the part of the company on the ground that he had not given notice of his injury within ten days, as provided in the policy. He thereupon brought this action to recover upon the policy. At the trial, which was being had before the court and a jury, the respondent moved for a nonsuit, at the close of the appellant’s case, which motion the court granted, entering a judgment dismissing the action.

The grounds upon which the motion to dismiss were granted are not made to appear in the record, but it is gathered from the briefs of counsel that the decision wa3 rested on the ground that the appellant did not furnish proofs of his injury, within the period limited, after giving notice to the company that he had received an injury. We think, however, that the respondent was estopped to urge this defense. The policy provided that written notice should be given to the secretary of the company at New York, by the insured, or by the beneficiary under the policy, stating full particulars of the accident and injury, within ten days from the date of the injury. There wa3 evidence introduced at the trial tending to show that this notice was furnished, also letters from the secretary denying receiving timely notice of the accident, and denying liability on the part of the company solely on the ground that timely notice was not given it of the accident. So persistent was the secretary in asserting want of notice to be the ground of the refusal to pay, that, after the claim had been put into the hands, of attorneys, and the company had been notified that an action would be begun unless a settlement was made, he wrote' these attorneys insisting on the non-liability of the company be *33 cause of the want of timely notice, and at the same time furnished them with a list of adjudicated eases from other jurisdictions where the law had been announced in aceord-incp with his interpretation of it. As the company denied its liability and refused to treat with the insured on the ground of want of timely notice; its action amounted to a waiver of any other objection, and it is not now at liberty 'to vary its ground and insist that the appellant cannot recover because he failed to comply with some other condition of the policy. Hennessy v. Niagara Fire Ins. Co. 8 Wash. 91 , 35 Pac. 585 , 40 Am. St 892; Castner v. Farmers’ Mut. F. Ins. Co., 50 Mich. 273 , 15 N. W. 452 . Nor is there any question that the acts of the secretary were the acts of the company. He was the officer of the company to whom the policy directed the appellant to give the notice, and his responses thereto must be held, for that reason, to’ be the responses of the company.

We conclude, therefore, that the trial court erred in taking the case from the jury and dismissing the action. The judgment appealed from is reversed and the cause remanded with instructions to grant a new trial.

Mount, O. J., Dunbar, and Hadley, JJ., concur. Rudkin, Root, and Crow, JJ., took no part.