IMPOSSIBILITY   233

relies upon the waiver clause to keep the policy alive, to excuse the payment of premiums. The disability set up in accident cases is usually the result of the injury insured against. Here there is no insurance against disability, physical or mental.

Dealing with the argument that the insured could not be expected to make proof while mentally incapable of so doing, let us look at this policy without this waiver clause. In that event the actual payment of the premium when due could alone prevent a lapse of the policy. No sickness, insanity, or disability of any kind would excuse payment as stipulated. The law does not class such event as one rendering performance impossible, nor its requirement unreasonable. The insured, by his contract, assumes the risk of any disability rendering it impossible for him to make payment in person, and is thereby warned to place the beneficiary or some nest friend in position to take care of his contract in such event. See note to 15 A. L. R. p. 318.

Now, by the terms of the waiver agreement before us, the insured may pay the premium or cause it to be paid, or may avoid so doing by furnishing the proof of disability as stipulated. In case of insanity, the required proof could be furnished by the beneficiary or next friend, just as the premium could be paid. * * *

Appellee relies upon _Marti v. Midwest Life Insurance Co., 108 Neb. 845, 189 N. IV. 388, 29 A. L. R. 1507. In that case the court said: "The policy contains no limitation of time in which the proof of disability must be presented." -Whether that court correctly construed the policy before it in that regard is not of concern here. The particular provision construed was not in the same terms as that here involved. That court did say the same principle applies as in accident cases. In this regard that case is not in harmony with others cited above. * * *

Reversed and remanded.49

49 Accident policies usually require notice of the accident to be given to the company "immediately" or within a specified number of days, usually ten. Suppose the insured is rendered unconscious or insane by the accident and he does not recover until after the time for notice has elapsed. llay he then acquire a right against the company by giving notice? That he may, see Comstock v. Fraternal Ace. Assn. (1903) 116 Wis. 382, 93 N. W. 22, Comment (1903) 16 Harv. L. Rev. 452; Hayes v. Continental Casualty Co. (1903) 98 Rio. App. 410, 72 S. W. 135, Comment (1903) 2 Mich. L. Rev. 59. That he may not, see White-side v. North American Ace. Ins. Co. (1911) 200 N. Y. 320, 93 N. E. 948, Comments (1911) 24 Harv. L. Rev. 502, 11 Colum. L. Rev. 289.

Insured was killed on August 22nd but his body was not found until August 25th. Notice of death by accident was given September 2. The policy required notice within ten days after the accident. It was held the ten days began to run when the body was found. Trippe v. Provident Fund Soc. (1893) 140 N. Y. 23, 35 N. E. 316, 22 L. R. A. 432, 37 Am. St. 529, Comment (1894) 7 Harv. L. Rev. 436.

That the insured had met death by an accident was not known until three years after his death, when his auto was found in a river. It was held that failure to give notice immediately after his death as required by the policy was