
    Insurance Company v. Norment.
    (Knoxville.
    November 17, 1891.)
    1. Supreme Court. Will not disturb verdict, when.
    
    Supreme Court will not disturb verdict rendered upon conflicting evidence under a correct charge if there is material evidence to support it.
    2. Life Insurance. Notice of inf try or death. Waiver.
    
    The condition in a life and accident policy requiring that “immediate written notice of an accidental injury or death” shall be given to the insurer at his homé office is treated as either waived or sufficiently complied with in a suit upon the policy for assured’s death, where the assured, having sustained his injury about the first of April, gave verbal notice thereof to the local agent some time in May following, which was promptly communicated to the home office by the agent through a letter, and thereafter the insurer, through his agents and physicians, made thorough examination of the case both before and after assured’s death.
    3. Same. Proof of death or disability. Waiver.
    
    The condition in a life and accident policy requiring “affirmative and positive proof of death, or loss of limb or sight, or of duration of disability” to be furnished to the insurer “within six months from date of death, or within thirty days from date of the termination of the period of total disability” is waived, where the insurer, having received due notice of the assured’s injury and of his subsequent death or waived the same, proceeded to investigate the case thoroughly both before and after assured’s death, and thereafter declined to investigate the claim or to furnish instructions and blank forms for proof of death upon the request of the beneficiary in the policy, made in due time, unless he would sign, as a condition precedent, an agreement whereby his claim might have been lost or prejudiced.
    4. Same. Limitation as to time of bringing suit.
    
    The condition in a life and accident policy forbidding suit thereon within three months next after receipt of proofs of death or disability at the home office, cannot be invoked by the insurer to defeat suit brought within that time, where he has waived such proofs, and absolutely refused, upon untenable grounds, to consider or settle assured’s claim.
    ER0M HAMILTON.
    • Appeal in error from Circuit Court of Hamilton County. John A. Moon, J.
    George T. Fry for Insurance Company.
    Creed E. Bates for Norment.
   Lurton, J.

On March 18, 1890, the American Accident Insurance Company issued to W. T. Norment an accident policy of insurance for five thousand dollars. This policy was for the term of one year, and insured him in the sum of twenty-five dollars per week against loss of time, not exceeding fifty-two consecutive weeks, resulting from bodily .injuries effected during the term of this insurance, “ through external, violent, and accidental means; ” “ ox-, if death shall result from such injuries alone within ninety days, will pay the sum of five thousand dollar’s to Virginia E. Norment, his wife.”

Nonnent died on June 26, 1890, and his widow-sued alleging that his death occuri’ed as the result of an accidental, external injury received by him while said policy was in force. There was a jury, vei’dict, and judgment in favor of the plaintiff below.

The first error assigned is that the death did not occur within ninety days after sustaining an accidental injui’y, and as a consequence of such injui’y alone. There was conflicting evidence as to the cause of the death of the insured. There was evidence tending to show that deceased had fallen upon a slippery sidewalk, striking the back of his head, and that his death resulted from this injury. There was likewise evidence tending to show that death was' caused by disease having no direct connection with this injury. There was a post mortem examination and conflicting opinion from the attending medical men as to the cause of death. The question as to whether death resulted alone from accidental, external injury was submitted to the jury under a correct charge; and, under the well-settled rule of this Court, the finding of the jury, being supported by material evidence,. cannot be disturbed.

There was evidence that this accidental injury occurred on March 23, 1890, and there was evidence that the date when this injury was received was March 30. If it occurred on the earlier date, then the death did not occur until after expiration of ninety days. If it was sustained . on the later' date, then Mr. Norment died within ninety days thereafter, and within the terms of the policy.

Mrs. Norment’s letter to the company notifying it of the injury stated March 23 as the day of injury. This letter was written before her husband’s death, and with a view of claiming the indemnity against loss of time resulting from the injury. Ve do not think this concluded her from showing, if she could, that she was mistaken in this date. The date was not then material, as Mr. Norment was not disabled so as to be prevented from attending to „ his ordinary business for fully a week after sustaining the injury, and no indemnity was claimed or paid for any disability between the two dates. The weight of evidence seems to have been in favor of the date originally stated by Mrs. Norment; but there, was evidence, if .credited by the jury, sufficient under the rule to support a’ finding in favor of the later date. The first and third assignments, being substantially the same, are overruled.

The fourth, condition of the policy was in these words:

“Immediate written notice of an accidental injury or death for which claim may be made, must be given to the company at Louisville, Kentucky, with full particulars thereof — -when, where, and how it occurred, with full name and address of the insured — and failure-to give such notice shall -invalidate all claims under this insurance; and unless affirmative and positive proof of death, or loss of limb or sight, or of duration of disability is so furnished within six months from date of death, or within thirty days from date of the termination of the period of total disability, then all claims based thereon shall be forfeited to the company. 3sTo legal proceedings for recovery hereunder shall be brought within three months after receipt of such proof at the office of the company in Louisville, Kentucky, nor at all unless begun within one year from date of alleged accident.”

Plaintiff in error insists that no such notice was given of this injury as is required by the clause quoted, and that no proof of injury or death was received at the office of the company at Louisville before institution of this suit.

There was evidence that plaintiff' went to the office of the local agent more than once for the purpose of notifying him of this injury sustained by the assured. Not finding the agent in, she notified a female clerk in the office, and asked her to see that the agent called upon Mr. Norment. Of this the local agent was notified, who thereupon in writing notified the office at Louisville of the claim. Tlie home office at once notified the local agent ■ to investigate the matter. At the request of the local agent the physician of the company called to see Mr. Norment, .and made an examination. This was -on the first of June. Afterward the general agent from Louisville, together with the company’s surgeon, called upon, and took statement, of plaintiff and examiped the assured. This general agent, as testified to by Mrs. Norment, then said to her that by her delay Mrs. Norment had forfeited all claim under the policy, but that tlie company did not desire to take any technical advantage, and that the case should be investigated on its merits. ' In addition to all this actual notice, plaintiff procured a friend to write to the home office as to this claim. After the death of Mr. Norment the company’s surgeon participated in a post mortem examination held for the purpose of ascertaining cause of death.

The learned Circuit Judge charged the jury that it must appear that written notice had been given within a reasonable time after this injury was sustained, but that written notice might be waived; and it was for the jury to look to all the circumstances and say whether written notice had been given,. or, if not, had' such notice been waived, and liad such notice been given within a reasonable time. The notice to the local agent was given some time between the first and last of May. The seriousness of the injury did not become apparent until early in April. The notice to local agent was not in writing, nor was it given by plaintiff or assured personally to the Louisville office. When a policy requires notice of an injury or loss to be given in writing to the home office, it is not always necessary that it be given by the assured himself. . It is sufficient if it is given at the request of the assured by the agent of the insurer. Here the local agent was requested to investigate this accident. lie wrote the company under this notice received by him. Written notice from the local agent of the insurers has been held sufficient where such notice was the result of information communicated by the assured. Wood on Insurance, 938, 989.

The purpose of such notice is • to give the insurer opportunity to investigate for itself the cause and extent of the injury. This actual notice was received by the company, and the case in fact investigated. The jury might well, on the facts shown as to this investigation, both before and after death of assured, find that written notice had been waived and that actual notice had been given within a reasonable time.

The vei’y able counsel for the company has very earnestly argued that even if all this be so, that this suit was premature; that it was brought within less than three months after death of assured, and before the receipt of proof of injury and death at office of the company in Louisville. The Court was on this point requested to charge “that no legal proceedings for recovery upon the policy sued on could be brought until after ■ the expiration of three months after receipt of affirmative and positive proof of death of the insured at Louisville; and if from the evidence it should appear that this suit was brought before proof of the death of Mr. Norment was received by the company, or before the expiration of three months after such proof was received by the company at its office in Louisville, Kentucky, then your verdict should be for the defendant.” This was charged with this modification: “ That request is the law as' I have heretofore charged you. If you find from the proof that this notice was waived, and suit brought within three months after the waiver of the condition, then the plaintiff can recover.” Elsewhere the jury had been charged as to what facts would constitute a waiver under this policy. Counsel now insist “ that there is no evidence in the record to justify a charge that the provisions of this clause of the policy had been waived.” It is a mistake to assume that the jury were charged that this provision of the policy had been waived. The jury were instructed that it might be waived, but the fact of waiver was left to. their determination.

We have already recited the facts concerning actual notice of both injury and death, and of the investigation actually made by the insurer. In addition, we may add that plaintiff, through her agent, did in writing notify the company of the death of her husband, and request blank forms for proofs of injury and death. To this the company replied, declining to make an investigation until Mrs. Rorment should sign and return an agreement in the following words:

“I hereby agree that in the event of the American Accident Company making an investigation of my claim against them for injuries received by my husband, ~W. T. Rorment, on March 23, 1890, they shall not be considered to have waived the failure on my part to give immediate notice of the injury.”

She declined to sign this paper, being unwilling to fix March 23 as the date of injury, thereby cutting off her claim that the death of her husband had resulted from an injury received within ninety days prior to his death.

She again requested “information in regard to proof of claim, etc.,” and asked an early reply. The company again declined to proceed unless she would sign the agreement previously sent. A third letter was written requesting instruction and blank forms for proofs of death. Again the company refused to send such blanks or investigate unless she would sign an agreement identical with the first sent, save in omission of day of injury. Upon this repeated refusal to give instructions or send blanks this suit was brought. The «agreement as last sent was prejudicial to the claim of plaintiff, in that it was, in effect, an admission that she had failed to give immediate notice of the injury. This construction, while not necessarily following, was possible, and indeed probable, and it is- clear that to have signed it would have put her case in peril. This she was not bound to do. The refusal to aid her with instructions or forms, or to investigate, unless she would prejudice her case by signing an agreement which the insurer had no right to require her to sign, was evidence upon which the jury could well predicate a verdict of waiver of proof of death. .This, together with the fact that the company had in fact investigated before the death of assured, and been represented at the -post mortem after his death, makes a clear case of waiver of the technical proofs of death required by policy. This conduct was equivalent to an absolute refusal to consider or settle the case. "When the insurer waives proof of injury or death, and refuses out and out to treat as to liability, save upon prejudicial and illegal conditions, suit may be brought at once, notwithstanding the clause postponing suit until ninety days after receipt of proofs of injury. A provision exempting an insurer from suit for a definite time after proofs of loss have been made, will be waived where there has been a waiver of such proofs and a refusal to- pay. Lawson on Nights, Remedies, and Practice, Secs. 2084, 2086, and cases cited; Am. & Eng. Ency. of Law, Vol. II., 349, 350, and cases cited.

The result is that we find no error in the charge or refusals to charge.

Affirm the judgment;  