#### WILLIAM W. GUY v. U. S. CASUALTY COMPANY.

(Filed 15 December, 1909.)

1. Insurance, Health — Notice of Sickness — Interpretation of Contracts.

A policy of health insurance requiring “written notice to be given in ten days by the insured or his attending physician to the company” of the disease by reason of which the indemnity is claimed, by reasonable intendment and construction' is-to afford the company opportunity to investigate conditions for the purpose of preventing imposition, and means that the notice must be given “within ten days of the beginning of that part of the illness for which the insured claims payment.”

2. Same — Reasonable Notice — When Notice Not Required.

The notice to an insurance company of indemnity claimed under a health policy requiring that written notice be given to the company by the insured or his attending physician, is sufficient if given by any relative or friend, etc., acting on behalf of the insured, though their failure to do so when the insured is unable to request it is no bar on the insurance. The rule intimated in Williams v. Casualty Company, 150 N. 0., 598, cited and approved.

3. Evidence — Findings by Court — Irreconcilable Findings — Judgments — Appeal and Error — Procedure.

When the judge, in the trial court, who by agreement of the parties was to have found the facts, sets out certain evidence which is conflicting and irreconcilable, finds it all to be true and renders judgment thereon, it is reversible error, and the judgment will be set aside.

4. Same — Insurance—'Health Policy — Notice of Sickness.

When the defense to an action to recover an indemnity for sickness under a health insurance policy is that-notice was not given as required by the policy, and the judge, under an agreement of the parties, in finding the facts sets out evidence tending to show that plaintiff was incapacitated by the sickness to notify the defendant, or cause it to be notified, and evidence per contra, the court on appeal will' set aside his judgment in favor of defendant on the evidence, and order a new trial.

*466Appeal by plaintiff from Justice, J., September Term, 1909, of McDowell.

Tbe facts are stated in tbe opinion of tbe Court.

Pless & Winborne for plaintiff.

W. T. Morgan for defendant.

Clark, C. J.

Tbis is an action upon a'health-insurance policy, begun before a justice of tbe peace, for eight weeks’ indemnity, at $10 per week, on account of plaintiff’s sickness. Tbe policy requires tbat “written notice of sucb disease be given by tbe insured or bis attending physician to tbe company at its borne office within ten days of its contraction.”

In some cases, especially in certain diseases, tbe condition of tbe patient may be such, by reason of bis mental condition or violent physical suffering, that be cannot give the notice. In such cases the rule intimated in Williams v. Casualty Co. (this same defendant), 150 N. C., 598, is that, where tbe patient, on account of bis condition, is unable to give notice, be would be excused, if the failure to give notice is without negligence on bis part.

Nor do we think tbat “within ten days of its contraction” can reasonably be construed to mean what tbe defendant contends tbat it does. In many, perhaps most cases, diseases are “contracted” months or years before tbe time when, like an underground river, they come to tbe surface. And, even then, many more than' ten days may pass before tbe disease compels tbe sufferer to quit work or otherwise entitle him to claim benefit under a health-insurance policy. We think the fair and just meaning is that tbe notice must be given “within ten days of tbe beginning of tbat part of tbe illness for which tbe insured claims payment,” so tbat tbe company shall not be liable for more than ten days’ payment prior to the time -\vben it receives notice; tbe object of tbe provision being tbat it may investigate and prevent imposition. In those very rare cases where tbe condition of tbe insured is such that he can neither give notice himself nor ask his physician to do so, failure to give notice is excused. Of course, tbe notice to tbe company may not only be given by tbe physician, but by any relative or friend acting on behalf of tbe insured, though their failure to do so when tbe insured is unable to request it is no bar on tbe insured.

In tbe present case tbe plaintiff put in, besides oral testimony, the correspondence between himself and tbe defendant, and the proofs of loss made by himself, tbe affidavit of bis attending *467physician and the statement of bis employer. It was agreed that tbe judge should find the facts; but, instead of doing so, he sets out the testimony and the above affidavit, statement and correspondence, “all of which the court finds to be true, as stated.” There is irreconcilable conflict. The attending physician’s affidavit is that the plaintiff was "totally disabled for thirty days, from 12 February to 12 March, 1908, during which time he could give no attention whatever to business, and such disability was immediate and continuousHis own affidavit was to the same purport, and this evidence, if true, as the judge found, might have justified the delay in not giving the notice in ten days. On the other hand, there was oral evidence coming from the plaintiff and the defendant’s letters, all likewise found to-be true, which would have justified a different conclusion.

The judgment must be set aside. The evidence will be submitted to a jury (unless the parties again agree that the judge may find the facts) and the law applied as herein stated.

New trial.

HoKE, J., concurs in result.