
    Preferred Mutual Accident Association v. Beidelman.
    A policy of an accident insurance company provided that the insurance should not extend to an injury caused by “ poison in any form or manner.” On a suit on the policy, it appeared that the holder was stung or bitten on his foot by some venomous insect. The court left it to the jury to say whether or not the injury resulted from poison in the sense in which the term “poison” was used in the policy. Held, not to be error.
    The above policy required suit to be brought within one year from the time of the accident. Suit was brought after the expiration of a year. The plaintiff claimed a waiver of the condition as to time of suit, and offered in evidence a letter from the secretary of the company stating that plaintiff’s claim was in the hands of the auditing committee and that he, the plaintiff, would be notified when the committee completed their investigation. The court charged that it was for the jury to determine whether the plaintiff was notified in time, so that he could have brought suit within a year, and that if he was not so notified, the company had waived the condition, and the present suit was brought in time. Held, not to be error.
    March 19, 1889.
    Error, No. 212, Jan. T. 1889, to C. P. Northampton Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by William Beidelman against tbe Preferred Mutual Accident Association of New York, at Dec. T. 1888, No. 24. Sterrett and Green, JJ., absent.
    The facts are stated in tbe following charge, by Schuyler, P. J.:
    
      “ On tbe 25th day of August, 1887, tbe plaintiff here, Mr. Beidelman, while sitting in bis room in Seattle, Washington Territory, was either stung.or bitten upon bis foot by some venomous insect. Tbe plaintiff claims that, in consequence of the injury which be thus received, be was totally disabled from attending to bis duties for a period of four weeks and two days. At tbe time of this accident, tbe plaintiff held a certificate of membership, purporting to have been issued by the defendant Association. This certificate insures Mr. Beidelman, as a lawyer, against bodily injuries, effected through external, violent, and accidental means during the .continuance of his membership. One of the covenants of the certificate is, that the Company will pay Mr. Beidelman the sum of $25 per week against loss of time, not exceeding 26 consecutive weeks, resulting from bodily injuries effected through means as aforesaid, other than such as shall result in the loss of one or both hands, feet or eyes, which shall, independently of all other causes, immediately, wholly, and continuously, disable him from transacting any and ■every kind of business pertaining to his occupation as lawyer.
    “ The present action was brought upon this certificate of membership, to recover the sum of $25 for four weeks, and a pro-rata •sum for an additional two days, during which Mr. Beidelman claims "he was disabled.
    “ The first question for your consideration is, whether the Association defendant issued the certificate of membership in suit. If it did not, then there can be no recovery. If you find that it did, then you will inquire, in the second place, was the injury Mr. Beidelman received covered by the provisions of the certificate. The learned counsel for the defendant does not dispute that Mr. Beidelman received the injury that he alleges. But it is not all injuries that this certificate insures against. The injury which it does insure against is stated in the certificate to be an injury which shall, independently of all other causes, immediately, wholly, and continuously disable him from transacting any and every kind of business pertaining to his occupation as lawyer.
    “ The second question is whether the injury sustained by Mr. Beidelman was an injury of the kind here indicated. • If. you find both these questions in favor of the plaintiff, then, I say to you, the plaintiff is entitled to recover for the full amount of his claim, unless there is something more in the certificate that would interfere and prevent such recovery.
    “ The defendant resists recovery upon two grounds. The first is, that the certificate or policy does not insure against injury resulting from poison in any form or manner; and the allegation on the part of the defendant is, that plaintiff’s injury did result from poison and consequently that he cannot recover. If that is true — that is, if the injury resulted from poison within the provision of the certificate — the plaintiff cannot recover.
    “ [Now, what is meant by the term poison in this policy % I can not guide you better in passing upon this question than by referring you to the definitions of poison in Webster’s Dictionary. The first is: ‘Any substance which, when introduced into the animal organism, is capable of producing a morbid, noxious, or deadly effect upon it.’ Second: ‘Anything infectious or malignant, as the poison of pestilential diseases.’ In a note to this definition, Mr. Webster says: ‘It usually denotes something received into the system by. the mouth, breath, &c. Yenom is something applied externally, or discharged from animals; as, by the bite or sting of serpents, scorpions, &c.’ If the condition in the policy had been that the company would not indemnify against accidental injury received from venom, then the contention on the part of the defendant would be a sound and unanswerable one; but the condition in the policy is that it shall not be an accidental injury resulting from poison.
    “ I have been asked by the learned counsel for the defendant, to say to you that there can be no recovery, because the evidence shows this injury resulted from poison. I cannot so instruct you, but leave it for you to say — whether or not the injury resulted from poison in the sense in which the term poison is used in this certificate of membership.] [6]
    “ The next objection to this suit by the defendant, is that this action was not brought within the one year from the time of the alleged accidental injury. There is a clause in the certificate to this effect: ‘Any claim under this certificate shall, if the Association require it, be referred to arbitration, the expense of such arbitration to be borne equally between the Association and the claimant, and no suit or proceedings at law or in equity shall be brought, or arbitration required, to recover any sum under this insurance, unless the same is commenced within one year from the time of the alleged accidental injury.’ I instruct you, as a matter of law, that this suit should have been brought within one year from the time of the accident, unless you find from the evidence that the defendants have waived this clause in the policy. The clause was inserted for the benefit of the defendants; and, being so inserted, it is competent for the defendants to waive the clause.
    “Now, the allegation on the part of the plaintiff is, that the defendants waived this condition in the policy; and, in support of that contention, they have offered two letters in evidence, written by the secretary of the Company, one to Mr. Beidelman, and the other to Mr. Steele. As these letters are material, and important, I will read them to you. In the letter to Mr. Beidelman, dated November 29, 1887 — little over three months from the time of the happening of the accident — the secretary says : ‘ Yours of the 21st inst. at hand, and contents noted. Your claim is still in the hands of the auditing committee for investigation; and, as soon as their report is made, you will be promptly notified. Our policies give us ninety days in which to pay all claims, but this clause is never taken advantage of, as all claims are generally paid in from five to twenty days; but, as your case was not reported until a late date, and being at a long distance from this city, it has taken extra time to make proper investigation.’
    “ The letter to Mr. Steele, dated December 1, 1887, reads as follows: c Your favor of the 30th ult., in relation to the claim of Mr. William Beidelman, is at hand. As Mr. Beidelman did not report his alleged injury until after his recovery, and being a long distance from the city, it has made an investigation of his case very difficult. His claim is now in the hands of the auditing committee; and, as soon as they have completed their investigation, you will be duly notified — we wrote Mr. Beidelman of this fact some days since. Our policy gives us ninety days in which to pay all claims, but we never take this time, except in eases similar to this, most claims being paid in less than fifteen days.’
    “ Now, you will notice from both of these letters that the Secretary says that the claim is in the hands of the auditing committee for investigation, and that it is a claim of more than usual difficulty from the fact that Mr. Beidelman resided at a long distance from New York. The Secretary does not say that the company will investigate the claim of Mr. Beidelman, but he says that ‘ the committee are in the process of investigation,’ and that he will inform or notify Mr. Beidelman and his attorney of the result promptly, as soon .as it is reached by the committee.
    
      “ [The question for you to determine is whether or not this Company did notify Mr. Beidelman of the action of the committee in time, so that he could have brought this suit within the one year. If you find that they did not, you may find that then this condition in the policy was waived by the defendants, and that the present suit was brought in time.] [7]
    The defendant presented, inter alia, the following points:
    
      “ 1. The suit was not brought within one year from the time of the alleged injury, the time limited by the fourth condition of the policy, and plaintiff cannot therefore recover. Ans. This would be true if there had been no evidence that the defendant had waived this clause in this policy. Whether they have so waived it is for your determination.”
    “ 2. The stipulation in the conditions of insurance in the policy sued on that no suit or proceeding at law or in equity shall be brought to recover any sum under this insurance unless the same is commenced within one year from the time of the alleged accidental injury, is binding upon the plaintiff and proof of its waiver must be positive before plaintiff can recover in this action. Ans. There is no question but that this clause in the policy is binding upon Mr. Beidelman and would continue to be binding upon him unless you find a waiver of the clause by the Company. It is said in this point that the evidence must be positive. I reply that the evidence must by its weight satisfy you that the Company did waive this clause in the policy.”
    
      “ 3. The statement of the secretary of the Association, in his letter to plaintiff, that plaintiff would be promptly notified of the action of the advisory committee upon his claim was not sufficient excuse for the neglect of plaintiff to bring suit within the time limited, and does not estop defendant from relying on said limitation as a defense to this action. Ans. I cannot so instruct you.”
    “ 9. It being the uncontradicted evidence that plaintiff’s injury was due to poison, plaintiff cannot recover, being bound by the first condition of the policy which excludes benefits for all injuries resulting from or caused by, directly or -indirectly, wholly or in part, by ‘ poison in any form or manner,’ or contact with poisonous substances. Ans. — I cannot affirm that point.”
    “ 10. Under the law and evidence, the verdict must be for the defendant. Ans. — I cannot affirm that point.”
    Verdiet and judgment for plaintiff.
    
      The assignments of error specified, 1-5, the answers to defendants points, quoting them; and 6,7, the portions of the charge within brackets, quoting them.
    
      Orrin Serfass, for plaintiff in error.
    The plaintiff was not disabled so as to prevent his transacting business pertaining to his occupation of a lawyer. He cannot, therefore, recover. Saveland v. Fidelity and Casualty Co., 67 Wis. 174.
    The stipulation in the policy that suit must be brought within a year is valid. Steen v. Ins. Co., 42 Am. R. 297; Ins. Co. v. Oil Co., 31 Pa. 448; Schroeder v. Ins. Co., 2 Phila. 286.
    The question of waiver in this case was for the court. Lewis v. Carstairs, 5 W. & S. 205; Keating v. Orne, 77 Pa. 89.
    A waiver is an intentional relinquishment of a known right; and there must be both knowledge of the existence of the right and an intention to relinquish it. Hoxie v. Home Ins. Co., 32 Conn. 21.
    To constitute a waiver, there must be some official act by the company. Beatty v. Ins. Co., 66 Pa. 17; Diehl v. Adams Ins. Co., 58 Pa. 452; Ripley v. Ins. Co., 30 N. Y. 136.
    A representation, to constitute an estoppel, must be a statement of a fact or state of things actually existing, or past and executed. Langdon v. Doud, 10 Allen, 432; Keating v. Orne, 77 Pa. 89; Waters’s Ap., 35 Pa. 526; Ins. Co. v. Mowry, 96 U. S. 544.
    Mere disappointment in expectation, or breach of promise or covenant, relating to the future, cannot constitute an estoppel in pais. Jackson v. Allen, 120 Mass. 79; Jorden v. Money, 5 H. L. Cas. 185; Waynesboro Ins. Co. v. Conover, 98 Pa. 384.
    The distinction made by the court below between poison and venom is inapplicable to this case, under the language of the policy.
    
      H. J. Steele and Wm. Beidelman, not heard, for defendant in error.
    A condition intended for the benefit of the insurers, may be waived by them. May on Insurance, § 488.
    Where an insured is misled by a promise of a notice of dis-allowance, such a promise is a legal obligation. Columbia Ins. Co. v. Lawrence, 10 Pet. 513; Tayloe v. Ins. Co., 9 How. 404; McMasters v. Ins. Co., 25 Wend. 381; May on Insurance, § 488; Com. Ins. Co. v. Sennett, 41 Pa. 164; Martin v. State Ins. Co., 44 N. J. L. 485; Cowesen v. Penn Ins. Co., 46 Pa. 323; Rockwell v. Mut. Life Ins. Co., 27 Wis. 372; Columbia Ins. Co. v. Masonheimer, 76 Pa. 138.
    The limitation of time began to run from the proof of the loss. Suit in this case was begnn on time. May on Insurance, § 479; Mayor v. Ins. Co., 39 N. Y. 45; Miller v. Ins. Co., 70 Iowa, 704; Vette v. Ins. Co., 30 Fed. R. 668; Freizen v. Allemania Fire Ins. Co., 30 Fed. R. 352; Mut. Accident etc., Asso. v. Kayser, 14 W. N. C. 87.
    The word poison was properly explained to the jury. 2 Wharton & Stille’s Med. Juris., § 1; Bacon v. U. S. Mut. etc., Asso., 44 Hun, 599; N. A. Ins. Co. v. Burroughs, 69 Pa. 43; Paul v. Traveler’s Ins. Co., 45 Hun, 318.
    The plaintiff was sufficiently disabled to justify his recovering in this case. Sawyer v. U. S. Casualty Co., 8 A. L. R., N. S. 233; Young v. Ins. Co., 6 N. Eng. R. 432; N. A. Life and Accident Co. v. Burroughs, 69 Pa. 43; Stone v. Casualty Co., 34 N. J. L. 371; Prov. Life Ins. Co. v. Fennell, 49 Ill. 180.
    March 15, 1889.
   Per Curiam,

Judgment affirmed.  