
    W. H. RAMSEY, Respondent, v. GENERAL ACCIDENT, FIRE & LIFE INSURANCE COMPANY, Appellant.
    Kansas City Court of Appeals,
    January 9, 1912.
    1. HEALTH INSURANCE: Reasonable or Litera! Construction. A policy of health, insurance provided for payment when the assured was “necessarily and continuously confined within the house and therein regularly visited by physician.” The assured lived in Missouri, but was taken seriously sick at his hotel in the state of Florida. He was attended by a physician there for several days, who advised that he be taken home. He was then brought to his home in Missouri in a pullman sleeping car and remained sick for several weeks. It was held that a reasonable construction of the policy would include the sickness thus originating in Florida, and his trip home.
    2. -: -: Sickness Within the House. A policy of health insurance providing for payment in case the assured was “continuously confined within the house, and therein regularly visited by a legally qualified physician” should not be construed to mean that the assured should be actually within the walls of a house all of the time of his sickness.
    3. NOTICE: Waiver. Though a policy of health insurance requires notice of sickness to be given within ten days, yet, if no objection to the claim is made on that account and the insurer encourages the assured to go to the trouble and expense in proving his claim and afterwards advises him that the only reason it is not paid is that it does not come within the meaning of the policy, there is a waiver of notice.
    Appeal from Pettis Circuit Court. — Hon. H. B. Shain, Judge.
    Affirmed.
    
      Harvey D. Dow for appellant.
    (1) The meaning of the policy is determined by its terms. They are the test, and that test in the case at bar is (1) “confinement within the house and (2) therein regularly visited by a legally qualified physician. ’ ’ The exact words of the policy set forth above, have been construed a number of times by the courts. Dunning v. Acc. Ass’n, 59 Atl. 535; Cooper v. Acc. & Sick Ben. Ass’n, 141 Mich. 478, 104 N. W. 734; Bishop v. U. S. Co., 91 N. Y. 176, 99 App. Div. 380; Schneps v. Fid. & Cas. Co., 101 N. Y. Supp. 106; Liston v. Cas. Co., 58 N. Y. Supp. 1090; Sawyer v. Protective Assn., 73 Atl. 168; Cas Co. v. Perdue (Ala.), 51 So. 352. (2.) Notice to the insurance company is required by the policy. Particular notice to a person at a specified place, is not given until it reaches the person named at the place specified. McCord v. Casualty Co., 88 N. E'. 6. (3) Compliance. with the terms of a policy cannot be construed into a waiver. Aronson v. Acc. & Plate Glass Ins. Co., 99 Pac. 537; Brown v. Cas Co., 207 Pa. 609; Foreman v. Ins. Assn., 104 Ya. 694; Farmers Assn. v. Kinsey, 101 Ya. 236; Hayadorn v. Acc. Assn., 69 N. Y. Supp. 831; Mech. v. Acc. Soc., 63 N. Y. Supp. 1008; Wilkie v. Nat’l Council, 66 S. E. 579. Where the health insurance company, after the expiration of ten days from the time a party insured becomes ill, but before it knew the date when he did be come ill, sent blank forms for proof of claim to him to be filled out, such conduct did not constitute waiver on its part of the provision requiring the plaintiff to notify it within ten days from beginning of illness. Whalen v. Accident Co., 58 Atl. 1057. Requiring proof of loss or strength of illness cannot be construed as a waiver because the proofs were necessary to establish what the loss was. Elhart v. Ins. Co., 92 Pac. 419, 37 Ins. L. J. 78; Greenwald v. Ins. Co., 102 N. Y. Supp. 157; McMahon v. Ins. Co., 42 N. W. 179; Acc. C'o. v. Watson, 64 S. E. 693; Tuttle v. Traveling Men’s Assn., 104 N. W. 1131; McCord v. Cas. Co., 88 N. E. 6; Rooney v. Cas. Co., 184 Mass. 26; Modern Woodmen v. Talbot, 107 N. W. 790.
    
      
      G. W. Barnett for respondent.
    The court committed no error in submitting this case to the jury. The plaintiff was confined within the house and therein regularly visited by a regular, qualified physician. A party need only be confined to his house in a substantial sense. The contract is to receive a reasonable construction. It is not necessary that the plaintiff should remain in the house all the time. To step out of doors now and then or to visit the office of the physician, would not be a violation of the clause of the policy so as to defeat a recovery. Hays v. Benevolent Assn., 127 Mo. App. 200; Hoffman v. Home & Hospital Association (Mich.), 87 N. W. 265; Benevolent Association v. Nanear row (Col.), 71 Pac. Rep. 423; Turnery. Fidelity & Casualty Co. (Mich.), 70 N. W. 898; Hohn v. Casualty Co. (Mich.), 72 N. W. 1105. By calling for proofs of the illness and.by putting plaintiff to trouble and expense in furnishing them and by long and continued negotiations as to the loss by denying liability on the ground that the plaintiff was not confined to his house under the terms of the policy, and by the receipt of the notice without objection at the time of its receipt, or at any other time that the notice came too late, the defendant has waived the necessity of timely notice. Meyers v. Casualty Co., 123 Mo. App. 682; Hohn v. Casualty Co. (Mich.), 72 N. W. 1105; Young v. Railway Mail Association, 126 Mo. App. 325; Dezell v. Insurance Co., 176 Mo. 253; Crenshal v. Insurance Co., 63 Mo. App. 678; Bolán v. Insurance Co., 58 Mo. App. 255 ; Cohn v. Insurance Co., 62 Mo. App. 271
   ELLISON , J. —

Plaintiff is a merchant living in Sedalia, Missouri, and there took out a policy of health insurance. He afterwards was taken sick, on the 19th of March, 1910, in the state of Florida, came home, and continued to be sick for several weeks. Defendant refused to pay Ms claim, whereupon he brought this action and recovered judgment in the trial court.

The policy contained the following provisions:

“Illness indemnity, at the rate.of one hundred dollars per month for the number of consecutive days, after the first week, that the insured is necessarily and continuously confined within the house, and therein regularly visited by a legally qualified physician by reason of illness that is contracted and begins after this policy has been maintained in continuous force for thirty days; . . .

“Written notice . . . of any illness for wMch claim can be made, must be given to the company at Philadelphia, Pa., within ten days of date of accident or beginning of illness. Failure on the part of the assured of the beneficiary to comply strictly with said notice reqmrement shall limit the liability of the company to one-fifth the amount which would be otherwise payable under this policy.”

When plaintiff’s sickness came upon him in Florida, he went to his hotel, had fever, was sick at the stomach and suffering severe pains in his bowels. He went to bed at the hotel and sent for a doctor. The doctor came to his room and prescribed for him and the porter sent out for medicine. The doctor administered certain remedies and soon called again. He took sick on Sunday and on Tuesday morning the treatment-having relieved him temporarily, he was .able to be up and walk to the office of the doctor. The doctor after giving him further treatment and prescription, recommended him to go home, telling him to keep out of the sun and to do no walking or exercise. Plaintiff was taken to the depot in a carriage that was summoned to the hotel for him and was taken to Sedalia, his home, in a Pullman car, where he was driven in a carriage to his home. He remained at home and within the house a few days under the treatment of a doctor. He was at home during all this time, except he was driven in a carriage to see his help at the store, but did not engage in any business and was not able to do so. Whereupon he concluded to go to Kansas City, for the purpose of consulting physicians there and taking treatment. He rode from Sedalia to Kansas City in a parlor car and was able to take a street car to the sanitarium. He met his physicians, who advised an operation. The operation was performed, which was very painful, and in about two or three weeks later a second operation was performed. He secured a room in a hotel nearby. During all the time that he was at Kansas City, he remained in his rooms in the hotel, except each day he went to the sanitarium for treatment, where he was treated daily by physicians. With the exceptions of the times when the operations were performed, he would be out of his room in going to and from the sanitarium and in consultation with the physician, about thirty minutes per day. During all the balance of the time, he was confined to his room all the time, and in bed most of the time. Though the hotel was but a short distance from the sanitarium, he usually was taken there in a carriage, but sometimes he was able to walk. After the first operation had been performed and he had recovered somewhat from its effects — about two weeks after the first operation and while waiting for the second — the doctors advised him to go to his own home where he could sit on the porch, and that getting out of doors in going would be better for him rather than injurious, and that he could go home and remain under their treatment which they had prescribed. He returned home in a parlor car and was taken in a carriage to his house. During all the time that he was at home in Sedalia, he remained confined within his house and was taking the prescription given him by the doctors at Kansas City, except that he sat upon the porch occasionally, it being pleasant weather, for a short period at a time, and was driven down to his store to see his clerks, but did not go into the details of the business, perhaps wrote a letter. He went back to Kansas City in very much the same way as he had gone the first time, and underwent the second operation and stayed confined to his room in the hotel under the directions and treatment of his physicians, and some time thereafter he was told that he could return to his home and continue their treatment, which he did, remaining confined to his house until the 5th of May, the date of the termination of his claim.

The foregoing is taken substantially from a statement by the parties, and in our opinion justified the trial court in submitting the ease to a jury.

The position taken by defendant is, in effect, that the policy means that an assured must laterally and actually be confined within the walls of a house all the time. We think that position untenable. We think that the contract should have' a reasonable construction. And an assured who may be attacked with serious illness at his hotel away from home and is advised by a physician who is called, that he should be taken home, and is transported in a Pullman car where he may be accommodated with a bed, and who on arriving home finds that he will be compelled to undergo an operation by skilled surgeons in a nearby city; goes there and is operated upon and attended by them daily by being taken to them in a carriage from his hotel nearby, and occasionally walking to them, when able, being taken home, yet under the treatment of a physician, and confined within his house, except occasionally sitting on the porch and being once driven down to his place of business, though not taking part in business matters, and at another time to a physician’s office; but with these exceptions, of shore duration, being in the house and much of the time in bed, is within the protection of the policy. We regard the case as governed by that of Hays v. Benevolent Assn., 127 Mo. App. 195. The opinion, by Nortoni, J., is supported by the following- eases: Hoffman v. Michigan Home & H. Assn., 128 Mich. 323 (87 N. W. 265); Mutual Benefit Assn. v. Nancarrow, 71 Pac. Rep. 423; Turner v. Fidelity & Cas. Co., 112 Mich. 425 (70 N. W. 898); Hohn v. Interstate Cas. Co., 115 Mich. 79 (72 N. W. 1105). See, as to construction of similar contracts, James v. Casualty Co., 113 Mo. App. 622, which, insofar as relates to permitting the literal construction, of words to destroy the substantial meaning- and object of a contract, is applicable to this case.

Defendant insists that plaintiff failed to give it„ the notice within the time required by the policy. The evidence, however, showed beyond doubt that notice was waived. The notice given by plaintiff was dated April 7, which was more than ten days after the beginning of his sickness. Preliminary proofs were sent and on April 15, defendant acknowledged receipt in these words:

“We are in receipt of your preliminary notice of illness. Tour doctor did not complete his side of the blank and we must have a report from him on file. Therefore kindly have him fill in the enclosed blank and return it to us.”

The suggestion as to the doctor was complied with by plaintiff. He furnished certificate of physician who attended him in Florida, and also a preliminary report of illness by his physician at Kansas City, and defendant at no instance objected to notice not being in time. On the contrary he was furnished blanks for final proof and was referred to defendant’s agent at Kansas City for adjustment of claim. After more correspondence, and no objection on the score of notice, defendant wrote plaintiff on July 26, 1910, giving reason for not answering some of his letters that they were investigating the claim, and asking of him further specific-information. Then after putting plaintiff to trouble and expense in complying with its requirets, defendant wrote to Ms attorney on- Angnst 23, saying that “we stand--ready and willing'at any time to make a settlement of this claim, provided the evidence is produced that the disability comes under the terms of the contract. . . . This is the only reason that his claim is being held up.”

The foregoing established complete waiver. [Myers v. Casualty Co., 123 Mo. App. 682, and authorities cited.] There is no ground for reversal, and the judgment'is accordingly affirmed.

All concur.  