199 Mass. 267 | Mass. | 1908
There were two questions in this case, both of fact for the jury under suitable instructions. One was whether the death of the insured was due to the accident alone. The other was whether the insured had received payment of the weekly indemnity to which he made claim. If the death of the insured was not due to the accident alone, then, under the terms of the policy, the plaintiff was not entitled to recover. And if the insured had received payment of the weekly indemnity, then the conditions under which he received it operated to release the association from all further liability under the policy on account of the injuries received by him from the accident. Two questions embodying these issues were submitted by the presiding judge, without objection, to the jury who answered both in favor of the plaintiff, and returned a general verdict for her. The case is here on exceptions by the defendant to the refusal of the presiding judge to give certain instructions that were requested, of which the first, and the only one that has been argued, was, that upon all of the evidence the plaintiff was not entitled to recover.
There clearly was evidence warranting the jury in finding that the accident was the sole cause of death. Dr. Beach, who attended the insured after the accident, testified that in his opinion the accident was the sole cause of death. There was also testimony from the widow and others as to the appearance and condition of the deceased before and after the accident which the jury could properly find tended in the same direction. It was for the jury to give such weight as they saw fit to the fact, if they found that it was a fact, that he had been and was suffering from diabetes, and to the testimony of Dr. Vickery, an attending physician, that he was unable to tell whether the accident was the sole cause of death or not, and to the statements made by the insured himself in his application for the weekly indemnity. The jury were told by the presiding judge, in instructions not otherwise excepted to, and which they could not have failed to understand, that they could not find for the plaintiff, or answer the question in the affirmative unless they were satisfied that the accident was the sole cause of death. The question, whether
In regard to the other question there was evidence tending to show that a check duly addressed to the insured and with a return imprint upon the envelope in which it was enclosed and prepaid was mailed to the insured by the treasurer of the defendant association a few days before the death of the insured and that it never had been returned to the defendant. It was admitted by the defendant that the check never had been used by the insured, and the widow testified that she had never seen it, and that after the death of the insured she examined his clothes and pocketbook and looked through his effects and found no check of the defendant. In this state of the evidence it was competent for the jury to find that the check never had been received by the insured and consequently that the weekly indemnity to which he made claim had never been paid to him. On this branch of the case also, the judge gave full instructions which we think correctly stated the law. None of the instructions requested by the defendant on this or the other branch of the case could have been properly given in the form in which they were presented. We discover no error in the manner in which the presiding judge dealt with the case.
Exceptions overruled.
