Clyde H. Neill instituted this action in assumpsit against the defendant, Fidelity Mutual Life Insurance Company, in the circuit court of Marion County. The recovery sought by the first count of the amended declaration, on which the case was tried, was limited to double indemnity under an accident clause of a life insurance policy. The defendant filed its plea of general issue to which the plaintiff replied generally and issue was joined thereon. From a judgment in favor of the plaintiff, based on a verdict of the jury, defendant prosecutes this writ of error.
Two specifications of defense were filed by defendant, only one of which, that is, "Specifications of Defense Number 1", was retained. Said "Specifications of Defense Number 1" was directed to the claim of the plaintiff set forth in the first count of the amended declaration. It denied liability on the ground that the plaintiff, although rendered wholly and presumably permanently disabled on January 15, 1932, as a result of an accident, had neglected and failed to file a proof of such accidental disability at the head office of the defendant company until April 22, 1932, more than sixty days after the date the claimed disability occurred. The plaintiff replied: (1) that the general agent of the defendant, located at Fairmont, having had actual notice of plaintiff's disability, had, by his representations to the representative of the plaintiff, waived proof of claim; (2) that for more than sixty days from the date of the accident the plaintiff was physically and mentally disabled from preparing or causing to be prepared the proof of claim required by the policy; and (3) that by the payment of liability under the policy for disability the defendant waived the requirement of notice for claim for double indemnity as a result of an accident. *Page 696
The evidence, adduced at the trial (March term, 1937), discloses that plaintiff received serious personal injuries in an automobile accident on January 15, 1932. He was rendered unconscious and confined to a hospital for about ten days. Thereafter he was confined to his home in Fairmont for more than four months. It is clear that for more than sixty days following the accident he was not physically or mentally able to transact business. His injuries consisted of an injured right leg, crushed knee cap, severe back injury, broken right wrist, broken ribs, and cuts and bruises about his face, body and chest. He developed pneumonia, pleurisy and phlebitis. At times he was delirious and irrational, and at other times suffered pain necessitating the use of opiates. A few weeks after the accident, he had chronic and ulcerated phlebitis. As a result of his injuries he had to undergo several surgical operations. He walks with a cane and limps. Three physicians and the plaintiff testified that in their opinion, he was permanently and totally disabled from engaging in any gainful occupation. To résumé the evidence as to plaintiff's disability, it is sufficient for us to say, as a matter of law, that plaintiff was disabled from filing the proof of his claim within the sixty days provided by the policy, and the jury to find, as a matter of fact, that he was permanently and presumably totally disabled within the accident provision of the policy. "Absolute helplessness is not deemed by the courts to be a condition precedent to the right of an insured to recover under a total and permanent disability clause." Hayes v. Prudential Ins. Co., 114 W. Va. 323, 326, 171 S.E. 824, 825. Ordinarily, the question is one for the jury. Jones v.Connecticut General Life Ins. Co., Syl. 3, 114 W. Va. 651,173 S.E. 259.
Plaintiff's counsel says that because of his physical and mental condition for a period of more than sixty days after the date of the accident, plaintiff was not required to file a proof of claim during the course of his disability. In opposition to this view, reliance is had upon the cases ofIannarelli v. Ins. Co., 114 W. Va. 88, 171 S.E. 748; DaCorte v. Ins. Co., 114 W. Va. 172, *Page 697 171 S.E. 248; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489,76 L. Ed. 416, 52 Sup. Ct. 230, and a number of others. TheIannarelli, DaCorte and Bergholm cases represent the general rule in the United States. In those cases the disability of the assured to file a proof of claim within the period provided for in the policy was relied on to effect a waiver of premiums, the non-payment of which caused the policies to lapse. The incapacity of an insured to file a proof of claim, due to the injury provided against in a policy, will not prevent a forfeiture or termination of the policy because of non-payment of premiums. For a general collation of authorites, see 15 A.L.R. 318; 59 A.L.R. 1080. The instant case, however, does not come within this general rule. Here, the policy had not lapsed and no reliance was had upon the disability of the plaintiff to file proof of claim in order to bring about a waiver in the lapse of the policy. Whereas, in the Iannarelli and DaCorte cases, the policies had lapsed because of non-payment of premiums, and there was, in law and in fact, no contract of insurance. What was originally a contract of insurance became a nudum pactum. Under the clear weight of authority in this country, where a policy is in full force and effect and the assured relies upon his physical and mental disability as a waiver of a proof of claim, the courts sustain such waiver. Pfeiffer v. Missouri State L. Ins. Co.,174 Ark. 783, 297 S.W. 847, 54 A.L.R. 600; Rhyne v. Jefferson StandardLife Ins. Co., 196 N.C. 717, 147 S.E. 6; Levan v. MetropolitanLife Ins. Co., 138 S.C. 253, 136 S.E. 304. See generally, 14 Rawle C. L., Insurance, sec. 504, p. 1333, and permanent supplement; 33 C. J., Insurance, sec. 663, p. 15; and extensive note in 54 A.L.R. 611. Contra: Whiteside v. North American Accident Ins.Co., 200 N.Y. 320, 93 N.E. 948, 35 L.R.A. (N.S.) 696.
The Iannarelli and DaCorte cases may be distinguished in still another way, as suggested by Judge Maxwell in theIannarelli case. The instant case involves an accident insurance contract. Clearly, in the total disability clause of a life insurance policy, the filing of a proof of claim is a condition precedent. Equally is it clear that *Page 698 an accident policy contemplates a disability which has already occurred and which, in many cases, would prevent the assured from filing a proof of claim within any limited time. SeeRhyne v. Jefferson Standard Life Ins. Co., supra; Levan v.Metropolitan Life Ins. Co., supra; and New England Mut. LifeIns. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 153, 59 A.L.R. 1075, cited in the Iannarelli case. The question arising from the distinction between the two classes of cases is of first impression in this state. Here, the policy provides against a contingency which, in all probability, would render the insured, as it actually did in the instant case, unable to file a proof of claim until at least sometime after his injuries. Under the circumstances, we think the requirement of the filing of the proof of claim within sixty days, unlike the provisions in the Iannarelli and DaCorte cases, is a condition subsequent. Therefore, the failure to file the proof of claim within the stipulated time, the premiums on the policy not being in arrears, does not vitiate the accident clause of the policy, and the insured's rights were saved by the filing of a proof within a reasonable time after regaining his faculties. In this regard, we adopt the reasoning of the Alabama Court in New England Mut. Life Ins. Co. v. Reynolds,supra, cited with approval by Judge Maxwell in the Iannarelli case.
Because we are of the opinion that the plaintiff was excused from filing proof of claim within the sixty-day period, the assignments of error based on the instructions, and the introduction of evidence as to the powers of the local agent of the insurance company, as well as the refusal of the trial court to introduce the contract of agency between the insurance company and the local agent, become moot and have no place herein.
Error is assigned on the ground that the plaintiff, though skilled in the art of reading X-ray pictures, was permitted, without the introduction of the pictures or their presence in court, to testify as to what the X-ray photographs which disclosed the injury showed. This objection is predicated upon a sound rule of law, well-established by a majority of the courts. Generally, it *Page 699 has been held that an X-ray picture is the best evidence, and therefore testimony of an expert, based on his knowledge of pictures not introduced in evidence, is inadmissible under the so-called best evidence rule. Hammond v. Bloomington CanningCo., 190 Ill. App. 511; Marion v. Coon Const. Co., 157 A.D. 95,141 N.Y.S. 647; Id. 216 N.Y. 178, 110 N.E. 444; 2 Jones' Commentaries on Evidence (2d Ed.), sec. 755, note 13;Patrick Tillman et al. v. Matkin, 154 Okla. 232,7 P.2d 414. But the introduction of improper evidence over objection, to be reversible error, must be prejudicial. 3 Am. Juris., subject, Appeal and Error, sec. 1027, note 12; Merrill v.Marietta Torpedo Co., 79 W. Va. 669, 92 S.E. 112, L.R.A. 1917F, 1043.
With this in mind, let us analyze the record to see whether the plaintiff's testimony, based on the X-ray photographs, was prejudicial to the defendant. The plaintiff testified to the effect that he was able to read X-ray pictures. The only part of his testimony which would indicate that he was basing his opinion on the X-ray pictures not introduced, was in reference to an operation, claimed to have been necessary by reason of his injury. He was asked: "Q. Was that (the operation) a direct result of this injury you speak of? A. Yes, sir, and in my back I had several X-ray pictures taken showing I had considerable curvature of the spine, which causes considerable pain." Here, the witness was testifying not merely what the X-ray pictures showed but, to a large extent, his testimony in this single sentence of his answer was based upon something which he felt in his own body, concerning which he, of all other persons, expert or not, was in the best situation to testify. While we adhere to the general rule as to the introduction of expert testimony, based on X-ray pictures not introduced in evidence, we are persuaded to the position that this testimony of the plaintiff was without prejudice, and, therefore, its introduction is not reversible error. By this holding we do not indicate that the relaxation of the general rule should be extended beyond the facts of the instant case. *Page 700
For the reasons set forth, and after a careful review of the record, we think the trial court did not err in refusing to set aside the verdict of the jury, and therefore, the judgment should be affirmed.
Affirmed.