{
  "id": 8655192,
  "name": "WILLIAM W. GUY v. U. S. CASUALTY COMPANY",
  "name_abbreviation": "Guy v. U. S. Casualty Co.",
  "decision_date": "1909-12-15",
  "docket_number": "",
  "first_page": "465",
  "last_page": "467",
  "citations": [
    {
      "type": "official",
      "cite": "151 N.C. 465"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "150 N. C., 598",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
  ],
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  "last_updated": "2023-07-14T21:30:26.349792+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "HoKE, J., concurs in result."
    ],
    "parties": [
      "WILLIAM W. GUY v. U. S. CASUALTY COMPANY."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nTbis is an action upon a'health-insurance policy, begun before a justice of tbe peace, for eight weeks\u2019 indemnity, at $10 per week, on account of plaintiff\u2019s sickness. Tbe policy requires tbat \u201cwritten 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.\u201d\nIn 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.\nNor do we think tbat \u201cwithin ten days of its contraction\u201d can reasonably be construed to mean what tbe defendant contends tbat it does. In many, perhaps most cases, diseases are \u201ccontracted\u201d 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 \u201cwithin ten days of tbe beginning of tbat part of tbe illness for which tbe insured claims payment,\u201d so tbat tbe company shall not be liable for more than ten days\u2019 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.\nIn 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 physician 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, \u201call of which the court finds to be true, as stated.\u201d There is irreconcilable conflict. The attending physician\u2019s 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\u2019s letters, all likewise found to-be true, which would have justified a different conclusion.\nThe 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.\nNew trial.\nHoKE, J., concurs in result.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "Pless & Winborne for plaintiff.",
      "W. T. Morgan for defendant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM W. GUY v. U. S. CASUALTY COMPANY.\n(Filed 15 December, 1909.)\n1. Insurance, Health \u2014 Notice of Sickness \u2014 Interpretation of Contracts.\nA policy of health insurance requiring \u201cwritten notice to be given in ten days by the insured or his attending physician to the company\u201d 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 \u201cwithin ten days of the beginning of that part of the illness for which the insured claims payment.\u201d\n2. Same \u2014 Reasonable Notice \u2014 When Notice Not Required.\nThe 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.\n3. Evidence \u2014 Findings by Court \u2014 Irreconcilable Findings \u2014 Judgments \u2014 Appeal and Error \u2014 Procedure.\nWhen 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.\n4. Same \u2014 Insurance\u2014'Health Policy \u2014 Notice of Sickness.\nWhen 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.\nAppeal by plaintiff from Justice, J., September Term, 1909, of McDowell.\nTbe facts are stated in tbe opinion of tbe Court.\nPless & Winborne for plaintiff.\nW. T. Morgan for defendant."
  },
  "file_name": "0465-01",
  "first_page_order": 509,
  "last_page_order": 511
}