
    Carrie E. Hagadorn, as Executrix of the Last Will and Testament of William Hagadorn, Deceased, Respondent, v. The Masonic Equitable Accident Association of the World, Appellant.
    
      Accident insurance—total disability not accruing within thirty days of the accident—failure to give notice within ten days—what act of the company is not a waiver thereof.
    
    A policy of accident insurance provided for the payment by the defendant to the assured of “ the sum of twenty-five dollars per week for a period not •exceeding fifty-two consecutive weeks as indemnity for loss of time resulting from bodily injury so affected during the life of this certificate through external, violent and accidental means which shall independently of all other causes immediately and wholly disable him from transacting any and every kind of "business pertaining to his occupation above stated.” The assured was not entitled to indemnity unless the disability accrued within thirty days from the date of the accident causing such disability, and unless the assured notified the defendant of the accident within ten days after the happening thereof. On March 4, 1896, the assured, who was a physician in general practice, was kicked by an insane patient on the left side of the face and over the eye; on March twenty-eighth he noticed a numbness- in his legs, and on the 9th day of April, 1896, the assured-, who up to that time had transacted his usual business, suffered a stroke of paralysis and became wholly disabled, the paralysis being traced to the accident of March fourth. April 28, 1896, fifty days after the accident, he served notice of the occurrence thereof on the defendant.
    In an action upon the policy it was
    
      Held, that as the total disability, which occurred on April ninth, did not accrue within thirty days from March fourth, the date of the accident, the plaintiff had no cause of action;
    That the failure to give notice of such disability within ten days after the happening of the accident, or ten days after the total disability had developed, would prevent a recovery;
    That evidence that the defendant sent the assured notices of assessments subsequent to the accident, and blanks upon which to make proof of loss, and permitted the- plaintiff to examine its books, and that after the death of the assured it applied for and ootained permission to make an external examination of his bod^, did not authorize the jury to find that the defendant had waived the provision of the policy requiring notice of the accident to be given within ten days after the happening thereof.
    Appeal by the defendant, The Masonic Equitable Accident Association of the World, from a judgment of the Supreme Court in favor of the plaintiff, entered in.the office of the clerk of the county of Schoharie on the 29th day of January, 1900, upon the verdict of a jury, and also from an order, bearing date the 18th day of January, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    Indorsed on the back of the policy there were the following conditions, among others:
    
      “Fifth. Written notice shall be given the said Association at Boston, Mass., within ten days of the date of the accident, and injury for which claim to indemnity or benefit is made, with full particulars thereof, including a statement of the time, place and cause of the accident, the nature of the injury and the full name and address of the insured and beneficiary, and unless such notice and statement is received as aforesaid, all claim to indemnity or benefit under this certificate shall be forfeited to the Association. * * *
    “ Seventh. This certificate will not entitle the certificate holder, or any person in interest, to indemnity for disability of any kind, unless the disability accrues within thirty days from the date of the accident causing such disability, of which accident this Association shall have had notice within the ten days above mentioned of the happening thereof.”
    
      Elgin L. McBurney, for the appellant.
    
      Eugene E. Howe, for the respondent
   Kellogg, J.:

The appeal in this case presents several questions for our determination, and the principal questions "may be stated as follows, viz.: Was there sufficient evidence of total disability of the assured, resulting from the accident, within thirty days from the date of the accident, to warrant the submission of the case to the jury ? Was there any evidence of waiver of notice of the accident which authorized the submission to the jury of that question ?

The policy held by the assured, William Hagadorn, at the time of the accident contained a promise to pay in these words: “ The sum of twenty-five1 dollars per week for a period not exceeding fifty-two consecutive weeks, as indemnity for loss of time resulting from bodily injury so affected during the life of this certificate through external, violent and accidental means which shall independently of all other causes immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation above stated.”

It will be observed that the benefit to be paid is to be paid only in case the assured is “ wholly disabled.” No partial disability is contemplated. The assured was a physician in general practice. In attending one of his patients, a lunatic, he was kicked by the patient on the left side of the face and over the eye. This was on March 4, 1896. It produced immediately some hemorrhage at the nose, some pain and discoloration, but was not of sufficient severity to immediately interrupt the usual routine of his business or profession. He continued to transact the “business pertaining to his occupation,” as theretofore, and gave no notice of the accident to defendant until April twenty-third following, fifty days after the occurrence. On April ninth the assured suffered a stroke of paralysis of the right side and thereupon became for the time being wholly disabled; the cause of the paralysis is traced to the accident of March fourth. On the ninth of April, before the assured became paralyzed, he transacted as usual the “business pertaining to his occupation” and made two visits to his patient, the lunatic,'at a distance from his office of some forty rods. It is obvious that if the assured did not become “ wholly disabled from transacting any and every kind of business pertaining to his occupation ” until April ninth; the total disability did not result within the thirty days from the date of the accident and plaintiff has no cause of action under the policy. It is claimed by respondent, however, that there is evidence in the case from which the jury had a right to find that the assured was wholly disabled before April ninth, before he became paralyzed, and it is of importance to consider what the assured himself believed and stated on this point.

On April twenty-sixth the assured sent in his proofs to establish his right to the promised benefits. He answered the following questions in the following manner: “ Describe nature and extent of injury. Nasal abscess producing total paralysis of the right side of the body. * * * How long had you been confined to your bed ? * * * For twenty days from the 9th of April to 29th of April, 1896. * * * Tour house % 4 days from March 28th to April 1st, previous to last attack. * * * Wholly disabled? For 20 days. From April 9th to April 29th, 1896.”

The complaint in the action is verified by the assured, William Hagadorn, on October 13, 1896, and alleges “ that the said William Hagadorn * * * on or about the 9th day of April, 1896, * * * sustained severe bodily injuries and received a shock of paralysis. * * * That said William Hagadorn has been wholly disabled from transacting any and every kind of business pertaining to his occupation aforesaid from the ninth day of April, 1896, to the second day of October, 1896.” There is no suggestion in the complaint of being at any time wholly disabled prior to April ninth.

The testimony of the assured was taken and read upon the trial. He says: “ From the 4th of March until April 9th, 1896, I felt apprehensive and told my wife that I was going to have trouble from that pain in my head during that period. I 'noticed my legs were numb on the 28th of March, my left leg was numb for about two hours, it was clumsy, but I could walk by walking with a cane, and it lasted about two hours and then disappeared and wore off. It was the left leg. It was numb from the foot up to the thigh. The numbness, came on quickly at the time, on March 28th, I think, I rode up to see Eugene Richtmyer on that day, just in the edge of the • village, about forty rods from my office, and during the next two or three days I felt no numbness. * * * On the 30 th of March, 1896, when Dr. Persons was present, I had a numb spell. * * * I got up and walked across the floor and dropped a book, as my left hand could not hold it. That, spell lasted three or four hours and no part of the arm was numb except the left hand up to the wrist. I did not experience any numbness after that for three or four days, and not until 1 had the pcsrabysis on April 9th, 1896. * * * On the 28th of March, when I had the numbness, I laid down a little while; can’t tell how long. .* * * I attended Eugene Richtmyer from March 4th, 1896, every day up to April 9, 1896. On some of these days I made more than one visit. He lived about forty rods from iny house and I rode most every time.” He further testifies to many other professional visits continuing daily from March fourth to April ninth, inclusive. On March twenty-seventh and twenty-eighth he visited a patient, Mrs. Brown, a mile from his house; on March thirty-first he visited, a patient, M. B. Sternberg at North Blenheim, eight miles away. Visited a patient, wife of Elmer Lewis, four times on April first.

The claim of the plaintiff on the trial was that there was some evidence from which the jury might find that the assured was wholly disabled on the twenty-eighth of March, so continuing to April second, but no claim is made of such disability between April first and April ninth. The evidence of the assured given above is nowhere in the case contradicted, nor is there other evidence which makes the facts relating to his disability prior to April ninth more favorable to plaintiff’s contention. Some evidence is given by Dr. Persons, and some by the wife of the assured, but it is all consistent with what the assured testified to and does not add anything except in corroboration. We must, therefore, concede from the evidence of the assured 'that when proof of claim was made on April 26, 1896, and when the complaint was verified October 13, 1896, there was no idea in the mind of the assured that he was wholly disabled ” at any time prior to April ninth. We must further conclude from his testimony that .at no time before April ninth was he so affected by the accident of March fourth as to be. wholly disabled from transacting the business pertaining to his-occupation in the usual way; that at no time ivas he in such condition as to be unable to visit his patients; that on March twenty-eighth and thirty-first, and April first, he visited patients a long distance from his office; that on every day, including March twenty-eighth, twenty-ninth, thirtieth, thirty-first, and April first, he visited the patient, Richtmyer, at a place forty rods from his office; that during the days last named his incapacity to transact his business was no greater than on previous days except for the numbness of the left leg com tinuing for about two hours on March twenty-eighth which made a cane necessary for that length of time to enable him to walk about, and the numbness of the left hand on the thirtieth March, continuing for about three or four hours; that at no time was he confined to his bed. That his disability Avas partial while the headache continued (which seems to have been from March fourth to April ninth), and during the hours when the numbness was present, may well be, but that he Avas at any time before April ninth wholly disabled is conclusively negatived by his daily acts. The question of disability is always a question of fact, but whether there is any proof of the fact is a question for the court. I do not find in this case any proof whatever tending to establish the fact that the assured was wholly disabled before April ninth. The proof is all to the contrary. It was, therefore, error for the learned trial justice to submit such proof to a jury. The motion made at the end of the trial to dismiss and for nonsuit on this particular ground should have been granted.

It may be noted here and in this connection that had there been ■ any proof of total disability on March twenty-eighth, or on any of the three days following, notice to the company of such total disability given on April twenty-third would not. be a notice within ten days as the policy required, nor notice within ten days after the disability had developed, nor do the facts in the case show any reasonable excuse for failure to give such notice. The failure to give notice, within ten days after April ninth may perhaps be excused by reason of the unconscious condition of the assured and the ignorance of the family as to the existence of the policy, but no.such excuse can be urged for failure to notify of total disability resulting from the accident developed to the knowledge of the assured March twenty-eighth, for during all the time thereafter up to April- ninth he was transacting business and able to give the notice, so, therefore, nothing in any case can be claimed from any possible showing of the existence of total disability on March twenty-eighth or any of the three subsequent days. If it should be held that the ten days does not, under the wording of the policy, begin to run from the date of the accident, then it certainly must begin to run from the first moment that the injury—total disability -—-is apparent. In any and every case this ten days must begin to run within the thirty days from the date of the accident (saving of course, cases where there exists legal excuse to cover a failure to give notice). This must be so since the total disability must occur within thirty days of the accident upon which occurrence the ten days must begin to run, and this is giving to plaintiff the benefit of the liberal con- ■ struction as to notice by plaintiff claimed. The thirty days from date of the accident expired April third. From April' third to April ninth the' assured had no legal excuse for failure to give notice. He had none until the night of April ninth.. If the total disability occurred at any time prior to April first, it is apparent that the full ten days expired before the paralysis occurred.

The learned trial court submitted to the jury the question of waiver on the part of defendant of the ten-day notice of the accident or injury. I find in the record no evidence of such waiver, and none which a jury had the right to consider as evidence of such waiver. Here there was no forfeiture of the policy claimed by defendant. The policy was in force, notwithstanding the accident and the claim made on account of it. The plaintiff had a right to continue it by paying such assessments as should be lawfully levied, continue it as a protection against future accidents, and the sending to the assured notice of such assessment subsequent to the accident had no bearing whatever on the claim made or the defense to the claim as made. The sending of blanks to make proof of claim was no waiver, for at that time defendant had no notice of the time when the accident occurred, and in its letter informed the claimant that it sent the blanks without prejudice to any defense it might have. The application to examine the books of defendant, which was willingly granted, could not have misled plaintiff or have given plaintiff the impression that the defense of lack of notice had been abandoned. The books were being examined to get proof of this very defense; some data to fix the date when total disability occurred; a date from which to reckon the ten days, if it was to be reckoned from the date of injury and not from date of the accident. After the death of the assured, which occurred in 1899, over two years after the answer herein had been served and this particular defense therein declared, the defendant applied for permission to make external examination of the body of the assured, which was granted. How this fact bears upon the waiver of the defense of lack of notice, or how it could be misleading to the plaintiff, is not' apparent.

We are well aware that the principle of estoppel or waiver, as refined for the benefit of insurance companies, is at this day difficult to recognize or to apply in the trial of cases, hut I think we are right in concluding that it still has some of the old distinguishing features which the court of last resort in this State has pointed out.

In Walker v. Phœnix Ins. Co. (156 N. Y. 633) the court said: “ ‘ While express waiver rests upon intention, and estoppel upon misleading conduct, implied waiver may rest upon either, for it; exists when there is an intention to waive unexpressed, but clearly to be inferred from circumstances, or when there is no such intention in fact, but the conduct of the insurer has misled the insured into acting on a reasonable belief that the company has waived some» provision of the policy. * * * While the principle may not be. easily classified, it is well established that if the words and acts of the insurer reasonably justify the conclusion that, with full knowledge of all -the facts, it intended to ‘ abandon or not to insist upon the particular defense afterward relied upon,’ a verdict or finding to-that effect establishes a waiver, which, if it once exists, can never be revoked.’ ”■

Tested by this declaration, what was there in the evidence' from which a jury had a right to find that defendant had waived the-defense of failure to notify ? It can as well be said that the defendant waived its right to make any defense whatever, and had it. been submitted to the jury to say whether the,defendant had not. waived every defense, no doubt they would have answered in the-affirmative. The submission of this question to the jury was challenged by defendant’s request to charge and the ruling excepted to.

The appellant has other exceptions in the case — exceptions relating to the court’s construction of the policy, and as to the time when, total disability must occur, whether immediately upon happening of' the accident or within thirty days thereafter; of the time when, notice must be given, whether within ten days of. the date of the* accident or within ten days of the first development of total disability, but as to these we express no opinion.

The judgment-should be reversed, a new trial granted, with costs, to appellant to abide the event.

All concurred, except Chase, J., not sitting.

Judgment and order reversed and new trial granted, with costs, to appellant to abide event.  