
    Union Indemnity Co. v. Gaines.
    (Decided May 26, 1930.)
    
      Mr. A. E. Sweigert and Messrs. Lieghley, Halle, Haber & Berick, for plaintiff in error.
    
      Mr. Alexander H. Martin, for defendant in error.
   Levine, J.

The parties stood in reverse order in the municipal court. Defendant in error, Lucille Gaines, recovered a judgment against plaintiff in error upon an accident policy for the death of her husband, which she alleged was caused by accidental means. The material language of the policy is: “Against the effects of Bodily Injuries, caused solely and independently of all other causes by external, violent and accidental means, (suicides, sane or insane excepted,) which bodily injuries or their effects shall not be caused wholly or in part, directly or indirectly by any disease, defect or infirmity, and which shall from the date of the accident result in continuous disability.”

Plaintiff in error for its answer set up three defenses :

“1. That the death was not caused solely and wholly by accidental means.
“2. That plaintiff failed to file proof of loss within ninety days after the death, as required by Section 7 of the policy.
“3. That the plaintiff failed to file her action within the two-year limitation provided by Section 14 of the policy.”

Defendant in error replied setting up matters which she claimed constituted a waiver on the part of the company. All the evidence in the case was offered by defendant in error. Plaintiff in error offered none except the exhibits.

It is the contention of plaintiff in error that neither the pleading nor the proof entitled defendant in error to recover. The following facts appear from the record:

“On November 12, 1925, between six and seven P. M., decedent was driving a lumber wagon west on Euclid Avenue (14). It was a low wagon, only three and a half feet from the ground (33). When he reached the point near Adelbert Eoad a machine struck the rear of the wagon and apparently threw decedent off the wagon to the pavement. The driver of the automobile got out as decedent was starting to get up and helped him up. The only injury then apparent was a cut on the hand (21). He was fully conscious (22), and was ‘able to stand straight when picked up’ (29). The automobilist and decedent both got into a cab and drove over to the Police Station where they stayed a short time and gave their report of the accident. From the Police Station decedent himself drove the wagon in to the barn (33). This accident occurred on Wednesday or Thursday of the week. Decedent went back to work the week following the accident and worked the entire week (38). On November 23, 1925, he suddenly dropped dead. * * *
“A coroner’s autopsy was performed. The report of the coroner which was introduced by the plaintiff disclosed that his sudden death was due to chronic myocarditis (inflammation of the muscular walls of the heart); chronic aortitis (inflammation of the great artery which carries the blood from the heart); Arteriosclerosis; closure of the coronary artery (formation of blood clot in the right coronary artery); and chronic interstitial nephritis (a kidney disease).”

All this occurred in 1925. In the middle of 1927 new counsel was employed and the correspondence which is attached as exhibits was exchanged between the parties. Plaintiff in error relying upon these facts herein narrated contends that the bodily injuries resulting in the death of the insured were not caused solely and independently of all other causes by external, violent, and accidental means; that the various diseases from which he was suffering were at least in part responsible for his death.

In our opinion the sequence of events detailed in the record justifies a finding that the insured died as a result of bodily injuries caused solely and independently of all other causes by external, violent, and accidental means. It is conceded that the assured weighed two hundred pounds and was knocked off Ms wagon by a collision, and that within ten days thereafter he died.

The medical evidence introduced in this case indicates that despite the various ailments from wMch the assured was suffering he would in all probability have continued to live for a considerable time thereafter, and that the violent falling caused by the collision brought about his death.

As to the assignment of error that the plaintiff failed to file proof of loss within ninety days after the date of death, we find on page 90 of the record, the following stipulation of counsel: “We are

agreed that we were served with notice. Our conduct was such that we admit we were served notice. We admit it in our statement of defense.”

On page 85 of the record, defendant in error Mrs. Gaines testified as follows: “They refused to give me the blanks, but they said they would take care of it.” In our opinion this evidence justified the trial court in finding that there was a waiver of the omission of proof of loss.

We are now brought to the last and most important assignment of error, namely, that the plaintiff failed to file her action witMn the two-year limitation provided by Section 14 of the policy. It may be taken as an established fact that suit was not filed until the expiration of the period of limitation provided for in the policy. Defendant in error, however, relies upon what is termed “waiver by conduct.”

The correspondence disclosed a course of dealing in which the company was called upon to pay the amount of the policy, and no decision was reached by the company until the two-year limitation had elapsed, when it definitely stated that the claim would not be honored. The company did not deny liability, but at all times stated that it needed more time for investigation.

From November 23, 1925, which is the date of the death of the assured, until July 2, 1928, the company constantly asked for further time to investigate; time to locate lost records; time to make its final decision. When the period of limitation provided for in the policy had finally elapsed by a good margin the company on July 2, 1928, finally made a definite statement rejecting the claim. We hold that the defendant in error was not required to sue until the insurance company finally rejected the claim, and that the action is not affected by lapse of time, for the reason that the postponing of bringing suit was at the request of the company.

The following authority supports this last statement of the law:

“The general statute of limitations of actions on contracts applies, and ordinarily may be pleaded by the company as a defense to an action on a life insurance policy, except where a special limitation on such an action is prescribed either by special provisions in the policy, or by special statute, and except where the company has waived, or is estopped to plead, the statute of limitations, as where it leads a party to delay the bringing of suit or to dismiss a suit already pending, by holding out hope of adjustment, or by making promises to pay.” 37 Corpus Juris, 597.

When the company held out hope of adjustment, the defendant in error was justified in waiting until the company’s final decision. It asked for an extension of time on several occasions, and it would be inequitable to permit the company to assert the defense of the two-year limitation, because clearly the postponing of bringing suit was had, if not at the express, at least at the implied, request of the company. There is, in our opinion, clearly a waiver by conduct on the part of the company.

We find no error in the record, and the judgment is affirmed.

Judgment affirmed.

Vickery, P. J., and Sullivan, J, concur.  