Foster v. Fidelity & Casualty Co., 75 N.W. 69

Foster v. Fidelity & Casualty Co.

75 N.W. 69

Wis.

1898

Check Treatment

Winslow, J.

Thеre are several reasons why this judgment, must be reversed.

1. The policy provides that immediate written notice must be given to the company of any accident and injury for which a claim is to be made, with full particulars thereof. This was a condition precedent to a recovery. The word u immediate.” in this connection, means such convenient time-*451as was reasonably necessаry under the circumstances ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to do the thing required. Kentzler v. Am. Mut. Acc. Asso. 88 Wis. 596. Where the facts are uncertain or disputed, and the inferences doubtful, the question whether timely notice was given is оne for the jury under proper instructions; but, where the facts are not in dispute, and the inferences are certain, it is a question of law for the court. Kimball v. Howard F. Ins. Co. 8 Gray, 33; Baker v. German F. Ins. Co. 124 Ind. 490; Mellen v. Hamilton F. Ins. Co. 17 N. Y. 609.

Here the fаcts as to the diligenco used in giving the notice are not in dispute. The accident is claimed to have taken place somewhere from the 1st to the 5th of September. The death of the insured occurred September 5th. The plaintiff went to Hurley to ascertain the cause of her son’s death, September 14th, and remained until the 17th. She herself testifies that while there she became satisfied as to the cause of his death. We have discovered nothing tending to show that she ever obtаined any further information. She took no further steps until October 2d, when she employed attorneys, and on October 12th one of her attorneys went to Hurley, and procured affidavits of the attending physician and the undertaker at Hurley, and returned to Stevens Point October 14th. On October 16th, a notice, stating that the death resulted from an accident, describing it as a fall from a box car on or about August 31, 1895, at Hoyt’s station, and an affidavit showing burial of the body by an undertaker at Stevens Point, were mailed to the defendant at New York City, and received not earlier than October 17th. Thus the proof is that the beneficiary knew the facts which satisfied her that her son’s death was аccidental as early as September 17th, and gave no notice of the accident to' the company until the following 16th day of October, an interval of twenty-nine days. A notice given after the lapse of such length of time with knowledge of the facts cannot be held *452■“ immediate ” notice. The decisions to this effect аre ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍numerous, and well-nigh unanimous. Uiblack, Ben. Soc. & Acc. Ins. § 416.

It was argued that the requirement of notice applied only to accidents or injuries not resulting in death, but we think the plain words of the policy cannot be so construed. The provision is that immediate notice must be given of “ any accident or injury for which a claim is to be made.” An аccident resulting’in death is certainly as much one for which a claim is to be.made as one resulting simply in disablement, and the necessity of a notice is certainly fully аs great, if not greater. Under the proofs before us we hold as matter of law that the notice given was not an immediate notice.

2. In addition to the notice thе policy in suit requires affirmative proof of death to be furnished to the company within two months from the time of death. After the notice and affidavit of the Stevens Point undertaker, before mentioned, were mailed to the company, October 16th, some ■correspondence took place between the plаintiff’s attorneys and the company or its claim agents relative to the claim of the plaintiff. On December 13, 1895, the plaintiff’s attorneys wrote that they had additional proofs that Foster’s death was accidental, and offered to furnish them. To this the defendant’s assistant examiner of claims replied that, “ we ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍would be pleased tо receive any. statements you may have bearing on the matter,” whereupon the plaintiff’s attorneys mailed to the examiner two affidavits,— one by the undertaker at Hurley, describing the bruises on the body of the deceased, and one by the attending physician, stating his treatment of the case; also stating his belief, from information received by him, and also in answer to a hypothetical question, that the death of the deceased was due remotely to injuries received by the deceаsed. Thése affidavits appear to have been received at Hew York about December 20th, .and to have been retained by the company. January 3,1895, *453the examiner wrote, in effect, denying liability, because the death was not the result of accident, and calling attention, to the plaintiff’s failure to make her claim in accordance with-condition 5 of the policy. There was also- some subsequent correspondence, and the entire correspondence and the affidavits were offered and received in evidence generally, against general objections of incompetency and immateriality as well аs the specific objection that no foundation had been laid in the pleadings for such evidence.

This evidence, if admissible at. all, was admissible only to-show that sufficient proofs of death had been furnished, and that the requirement that such proofs be furnished within two months after the death had been waived by the acts of the-comрany. It is said by appellant that no waiver, could be shown, because it was not pleaded, and that, if waiver was relied upon, it must be specially pleaded, and cannot be shown-under an allegation of performance of conditions. This com tention seems to be adversely ruled against by the decision in the casе of Zielke v. London Ass. Corp. 64 Wis. 442, and must be overruled upon the authority of that case. But, as before stated, it could only be- received to show the fact of waiver, and that the conditions of the policy as to furnishing proof had ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍been thus substantially complied with, and we regard it as sufficient for that purpose; but it was not admissible as substantive proof of any fact as to the accident or the cause of the death. Hiles v. Hanover F. Ins Co. 65 Wis. 585: It was, however, introduced, and received generally in the case, and was used and read tо the jury as-proof tending to show that the death was the result of accident. Both the letters and the affidavits contained many statements of fact and opinions bеaring on the cause of death which were well calculated to be regarded by the jury as substantive proof upon the'question, and it was error to. receivе it, and allow it to be used for this purpose.

3. Dr. Turner, the physician who treated the deceased, *454was asked the following question upon his direct examination : “ State now whether, in your judgment, his death was occasioned by those injuries, from all the evidence you had before you at that timeP An objection to the question was overruled, and he answered the question affirmatively. This was error, because the question does not show the facts upоn which his opinion was based. It may be that it was based largely upon hearsay. Indeed, his further examination tended to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍show that such was the fact. Such an opinion should be based either on his examination of the cáse or upon a proper hypothetical question, and not upon a question which allows the witness to base his answer upon his own idea of what is evidence and what is not evidence.

4. We cannot refrain from saying that, in our judgment, the evidence was entirely insufficient to sustain the vеrdict that the death of Poster was the result of accident, independently of all other causes. It would not be useful to attempt to review all of the evidenсe,‘which was very voluminous. It is sufficient to say that there was no direct proof of any accident. The body of Poster had some bruises of recent origin, and one оr two small abrasions upon the back, at the crest of the pelvis, and along the spine, but how or when they were indicted does not appear. The evidenсe was very strong tending to show that his death was the result of a sudden and severe attack of cholera morbus or dysentery. The medical expert evidence whiсh it is claimed justifies a conclusion that his difficulty resulted from the injuries which produced the bruises was very unsatisfactory in its character and inconclusive. Certainly it comеs short of proving that any accident, independent of all other causes, produced his death.

By the Court.— Judgment reversed, and action remanded for a new trial.