178 A.D. 338 | N.Y. App. Div. | 1917
The plaintiff was beneficiary under a certificate of insurance issued to her brother, Mortimer J. Hammill, by the defendant, a fraternal beneficiary association which indemnified for injuries or death caused by accident. On April 6, 1914, Hammill, while a member in good standing in the order of the defendant, accidentally sustained a fracture at the base of the skull which caused his death seventeen days thereafter on the 23d of April, 1914. The circumstances of the injury and resulting death are such as to bring the case within the protection of the certificate of insurance provided the notice of accident or death required by the contract of insurance was given to the defendant. That is the only question we deem it necessary to discuss.
Whatever notice was required by the contract of insurance it was essential to give and no unforeseen contingency would excuse such notice nor can it be excused because the requirement may seem to be unreasonable. (Whiteside v. North American Accident Ins. Co., 200 N. Y. 320.)
The defendant claims that it was entitled to notice within ten days after the accident and to a second notice within ten days after the death of Hammill. The only notice given was within ten days after his death. We think that was sufficient under the requirements of the contract.
The certificate of insurance provides for two kinds of benefits, first, to the member himself in case he survives his
Unquestionably if the insured member had died within ten days of the accident the. notice given in this case would be sufficient. As we construe the requirements as to notice in death cases such notice does not depend on the length of time which intervenes between the accident and death but if death occurs whether within ten days or not, the same notice suffices. This seems the reasonable construction. No good reason is apparent why a different notice should be required in one case than is required in the other, and if the defendant intended to require a different notice when death occurs more than ten days after the accident than it requires when death results immediately or within ten days of the accident such intent should be made manifest by more specific and definite language.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.