The following opinion on rehearing was filed May 17, 1905. Judgment of reversal vacated. Judgment of district court affirmed:
Ames, C.This case was formely before this court and decided by an opinion published, ante, p. 661. On the former occasion the cause was submitted on briefs without oral argument, but the facts are set forth at length in the opinion and need not to be here repeated. A rehearing was granted, and oral arguments thereon have been had, solely upon the subject of the construction of the pleadings, to which subject the present discussion will for the most part be confined.
At the time of the former decision we were united in opinion that if by the pleadings themselves or by the admissions of fact contained therein, the defendant, plaintiff in error, had waived formal notice of the accident, to obtain indemnity for which the action was brought, the judgment of the district court ought to be affirmed. The petition anticipates that failure to give such notice might, and perhaps would, be relied upon as a defense to the action, and pleads as an excuse therefor total mental and *675physical disability as a consequence of and immediately following tlie accident continuously for a term extending beyond the period within which the notice was by the contract required to be given. But it further alleges that within that period a vice-president of the defendant called upon the plaintiff at his home where the latter was suffer - ering from the disability complained of, “and plaintiff notified said vice-president of said company, and said company of said accident.” It is insisted by the defendant that this latter allegation is inconsistent with and in effect a retraction of the former, but we think that such would be a too literal and technical construction! No attack was made upon the petition by motion or otherwise, and it is the settled rule of this court, sanctioned by decisions so numerous that citation of them is not requisite, that after a verdict and judgment, pleadings will be liberally construed for the purpose of upholding the result reached by the court and jury. It is obvious to our minds that what the pleader had in view and intended to allege was that the defendant, by the visit of one. of its managing officers within a week after the happening of the accident, and by what the latter learned upon such visit by his observation of and conversation with the plaintiff, became aware and charged with notice and knowledge of the occurrence. It was* in substantiation of the allegation as so interpreted that evidence was offered by the plaintiff and admitted on the trial, and we think that it is too late, after verdict, to object that such is not its true meaning. The above mentioned allegation in the preceding paragraph of the petition is in the following language:
That the accident “caused a hemorrhage of the brain, causing complete disability of the plaintiff, and from the effects thereof plaintiff became totally disabled, mentally end physically, helpless and nearly blind; was confined to his bed for nearly six months, and wholly unable to work, travel, or perform his business, or to personally visit or notify said company at Omaha, Nebraska.”
*676We think these two allegations, the one following immediately after the other, ought, at any rate after verdict, to be considered and construed together, and to be held to charge, in effect, that the plaintiff was disabled by the accident from giving formal notice within the 15 days stipulated in the contract, but that within that time the defendant became fully aware of it by means of the visit of its vice-president.
The petition further alleges that after the visit of the vice-president, and on an unspecified day in March, the plaintiff notified the company of the accident and demanded indemnity therefor, but that in response “to said several notic.es” the defendant “denied that it was liable therefor and claimed that the plaintiff was not injured by accident at all, and thereby waived and did forego all that certain portion” of the contract, “in respect to formal and technical notice and of any notice at all of said accident and is now concluded and (‘stopped to claim any benefit or advantage thereof as to notice of any kind in these premises.” The evidence shows that the pleader was mistaken as to the date of this latter mentioned notice, and that the notice referred to was the letter of the son of the insured written to the secretary of the association under date of April 8, 1902, long after the expiration of the 15-day limit. There was therefore no intentional repugnancy between tin's last allegation and either of the preceding. There was no motion to make more definite and certain, and it is evident that both parties interpreted the allegation as a sufficient designation of the letter disclosed in the proofs. The reply of the secretary of the association to this letter fully sustains the petition. It explicitly den ira that the insured had been injured by accident, and -while calling attention to the requirement of notice within 15 days, remarks that because of the absence of accident, that feature “would not be of importance.”
The answer admits that the plaintiff was suffering from .the malady described in the petition, but alleges that the *677same was due to disease, and not to aecident, and alleges “that plaintiff.has at no time given notice of any accident or accidental injury as required by said constitution and by-laws and by the contract between plaintiff and defendant.” The reply avers that on or about the 26th 'day of April, 1902, the defendant, by a formal vote of its board of directors, “denied that plaintiff was injured by an accident; denied that defendant was liable to plaintiff for or on account of accident, well knowing of plaintiff’s claim and of plaintiff’s notice of same to defendant, and the defendant did thereby waive and forego all provisions of the by-laws and stipulations of the contract with reference to notice,” and “is now estopped to claim any benefit or advantage thereof as to notice of any kind in the premises.”
Upon mature consideration, after listening to oral argument, we are convinced that there is no necessary repugnancy between the reply and the matter above quoted from the petition. If it is true, as said in the former opinion, that there is no inconsistency between a denial of notice and a denial of the existence of anything of which notice could have been given, it is equally true that there is no serious conflict between an allegation that notice was waived and an allegation that there were circumstances within the knowledge of the parties which rendered a notice not requisite. The petition admitted in effect that a formal written notice, such as was contemplated and in most cases required by the contract, had not been given within the time specified therein, but it pleaded two excuses for the failure, or, at least, one excuse and one circumstance which rendered the formal notice not indispensable, to wit: First, that the plaintiff was disabled from giving the notice by the nature, gravity and duration of his injury, and second, that within the time limited by the contract for giving the notice, the defendant, through the visit and conversations of one of its managing officers, had an acquaintance with the precise facts, knowledge of which the, notice, Avhen given, *678was designed to impart. Noav, if these allegations are true, they are in no degree inconsistent with the claim that when some months later the plaintiff made a demand upon the association for indemnity, the latter regarded the question of notice, as its secretary had previously expressed it, as “not to be of importance,” because, “as above stated, the association does not pay indemnity for disability except such disability as may have been caused by reason of accidental injuries,” and “there seems to have been no accident in this case.” Whether the reply strengthened in any degree, the case made by the petition, may be doubted. The transactions of the 26th of April pleaded by it, and established by the evidence, Avouhl have; been more accurately described as treating a formal notice as already Avaived than as constituting in themselves a Avaiver of one, and it is not unlikely that they might have been proved as an admission to that effect Avithout having been especially pleaded; but however that may be, neither the pleading nor the proof of them Avas inconsistent with the allegations of the petition. It was held by this court in German Ins. Co. v. Shader, 68 Neb. 1, that it is competent for the plaintiff to anticipate a defense and plead waiver (or matter of avoidance) in his petition. This the plaintiff did, and the allegations of the reply, which the former opinion regards as an admission that no notice AAras given, now‘appear to us to be merely supplemental to and corroborative of the petition. If this view is correct, the decision in Dwelling House Ins. Co. v. Brewster, 43 Neb. 528, cited in the former opinion, is not in point. German Ins. Co. v. Shader, supra, is authority for holding that a petition and reply, in so far as they treat of the same matter, arc* to be construed together, and under the liberal rule above, adverted to they Avill not be treated as in conflict Avitli each other unless necessarily so. It does not appear that there* is any necessary inconsistency in the instance under discussion.
The facts stated in the former opinion, and established *679by practically undisputed evidence, are, we tliinlc, conclusive to the following effect: That within a week after the plaintiff received his injury he was visited by one of the managing officers of the defendant, and that through the latter the defendant then acquired a knowledge of the nature of the plaintiff’s disability and the circumstances of its cause, or at least origin; that within about six weeks afterwards a son of the plaintiff called the matter to the attention of the defendant’s secretary, by the letter of April 8, and was promptly rebuffed by the latter by an emphatic denial and repudiation of the claim that the plaintiff’s disability was due to accident; and that such denial was treated as the sole ground for the rejection of the claim by the formal action of the board of directors on the 26th of the same month. The answer admits that “plaintiff was totally disabled and unable to perform any part of the dxxties pertaining to his usual occupation for a period of one year, beginning on the 22d day of February, 1902,” the second day following the accident. Furthermore, the answer, after having affirmatively alleged that the defendant is excused from payment by section 6, article 8 of its constitution and by-laws, because the disability complained of was due to disease, concludes with the following: “Further answering said petition the defendant denies each and every allegation therein contained not hereinbefore' specifically admitted,” and the one important allegation of the petition not specifically or otherwise admitted is, that the disability of the plaintiff was due to accident, so that fact is pxxt distinctly in issue.-
We conclude, therefore, that the case falls clearly within both of the main principles adopted by this court in Omaha Fire Ins. Co. v. Dierks, 43 Neb. 473: First, that formal notice of loss was immaterial, be.caxise the coxnpany had actual notice through the presence of its agents at the fire, and acted thereon, though refusing to make payment for that reason; and, second, because the company by its pleading denied liability on the ground that *680the property destroyed was incumbered by mortgage at tbe time of tbe fire. It can, of course, make no difference with tbe application of tbis latter rule whether tbe issue of nonliability is raised by special allegation or by general denial, or whether tbe absence of liability is contended to be due to forfeiture, as in tbe case cited, or to tbe nonoccurrence of tbe accident out of which it is alleged to have arisen, as in tbis case. In either case tbe plaintiff would be driven to tbe expense and labor of tbe trial of an issue that would be wholly immaterial in tbe absence of liability for want of notice. In short, if tbis court adheres to tbe opinion in Omaha Fire Ins. Co. v. Diaries, supra, tbe judgment in tbis case must be affirmed as in harmony therewith; but if that decision is overruled, there must still be an affirmance, because, by tbe opposite rule for tbe construction of pleadings, tbe reply is not inconsistent with tbe petition, and the undisputed evidence establishes tbe fact that tbe defendant repudiated tbe claim on tbe ground that there bad been no accident.
We are satisfied with tbe opinion in tbe case cited, and recommend that it be adhered to and that tbe former decision of tbis court in this case be vacated and set aside, and tbe judgment of tbe district court affirmed.
Oldham, 0., concurs. By the Court:For tbe reason stated in tbe foregoing opinion, it is ordered that tbe former decision of tbis court be vacated and set aside, and tbe judgment of tbe district court-
Affirmed.