Lepak v. Commercial Casualty Insurance

269 N.W. 89, 198 Minn. 134, 1936 Minn. LEXIS 714

• Court: Supreme Court of Minnesota
• Decided: October 9, 1936
• Docket: No. 30,899.
• Status: Published

Opinions

Stone, Justice.

In this action on a policy of accident insurance the trial ended in a directed verdict for defendant. After plaintiff’s motion for judgment notwithstanding or a new trial Avas denied, defendant entered judgment, and plaintiff appeals.

The policy contained this proidsion:

“Written notice of injury or of sickness on which claim may be based must be given to the Company within tAventy days after the date of the accident causing such injury or within ten days after the commencement of disability from such sickness.”

Plaintiff received his accidental injury November 16, 1934. He made no effort to give '“written notice” of the resulting injury until December 27. His case is predicated upon an alleged “custom and practice in force” amounting to a Avaiver of compliance Avith the policy term requiring written notice AAdthin 20 days. The evidence fell far short of establishing a Avaiver. One of the statutory standard proAdsions of the policy (1 Mason Minn. St. 1927, § 3417[2]) was that “no agent has authority to change this policy or to waive any of its provisions.” Defendant’s local agent, Mr. Zien, made an effort, revealed by correspondence, which is in the record, to bring about a settlement of the claim. His earliest letter on the subject bears date of December 13, 1934, which was about a week after the expiration of the 20-day period.

Judgment affirmed.