Maryland Casualty Co. v. Massey

Among provisions” the “additional poliey clause as follows: Klewer, of Memphis, E. B. (Klew- Tenn. “This accident, not cover Exby, Memphis, er, & Gailor on Tenn., death, jury, disability, or other loss caused brief), appellant. indirectly or contributed Minor, Memphis, D. (Burch, H. Tenn. bodily partly, by or mental infirmity, pto- McKay, Memphis, Tenn., Minor & on the maines, infections (except bacterial brief), appellee. infections shall oeeur simultaneously Before MOORMAN and HICKEN- with and accidental cut or wound LOOPER, Judges, SIMONS, provided), Circuit hereinbefore or by * * ” Judge. District other kind of diseases

72o have might the insured awas result which effect testimony was The medical anticipated reasonably have might or follicle; the known that in a a hair is imbedded that a voluntary plucking of tiny a orifice would follow hair, a will leave plucking of pres ignoranee his nor whether may pro- whieh membrane skin or mucous ignorance pyogenic germs was such into ence of germs entry pyogenic port of vide a destroy the material factor as would of a stream; that lymph stream, or the the blood act. of his up- normal intended usually present staphylococcus germs ap or consider the soundness Nor do we here plucking skin; infection from on the any unex very plicability holding by whieh unknown, hair, of a a acci pectedness unusualness of or mu- injury to skin unusual; for deter entry is made the criterion dental result port of a may provide membrane cous brought not an mining aet whieh whether that it difficult germs; pyogenic is suf is an means.” It it “accidental about to determine in a ease physician Case, Pope the hold ficient to note that entry. port of the exact (C. A.) v. 265 F. ings Brand of Ætna Co. C. bodily from covered death poliey (the 6, 13 misplaced A. R. 657 L. through accidental injuries effected artery), Dodge (C. A.) and Mutual Co. v. interpret the is made to means. Some effort (unknown R. 59 A. L. from all accidental covering death poliey as hypersusceptibility novoeaine), con were effected, in reliance injuries, however carry whieh defi sidered decisions Poliey” Accident “Perfection designation something of “accidental means” nition top and at the printed upon the outside yet accepted extreme, might of an be there statement that followed contract, being applicable. go without We need * * * for death indemnity “provides phases in relation to than that injuries.” to accidental due liability, of the rule of for in the ease instant part of say designation fairly appears from record to a ma merely an indication contract, that it is jority of this court whatever qualifying general nature, of its Massey’s been the intended character of provided,” phrase, limited “as herein act, misstep slip whereby there was a his challenge to holder a intended act was as the manner of its exe any general than policy rather terms cution transformed into unintended one. meas- designation are to be looked to Barry, U. S. Mutual Ace. Ass’n 131 U. S. provided. protection ure 755, 33 9 S. L. Ed. 60. is substantial distinction between There Massey pulled a hair from the inside injuries” “accidental nose, presumably spot his at put “accidental or as it was lip skin of meets the mucousmembrane of [Pope decision this recent court Septicemia resulted, the nostril. followed F.(2d) 185], Prudential Insurance Judge death. The District submitted the result and result of between accidental jury, with instruction to find Conceding accidental cause. the bene Massey poisoning if died blood ficiary Pope breadth in the Case the utmost pulling from his hair from his induced nose liability of definition for the rule under whieh caused wound whieh similar poliey to those con provisions here germs at or about entered the tíme such sidered, there was found to no accidental made. The wound was so found. If Stating the death involved. cause to there Massey’s produced tearing aet aspect, in its broadest it was rule abrading membrane, certainly skin Pope considered there cannot Case intended, such wound was nob reasonably presumed and it any injury to be an accidental cause said infection occurred acting his con the insured or those when simultaneously such wound. they do precisely did intended to sent what record Does the sustain the instruction they intended, way and in whieh know jury? We find might ing that often did result respect ourselves in confronted with the unavoidable, slip and where there was no question that was identical before Su misstep and where performance, Barry Case, supra. in the Dr. preme Court ignorance there was material fac jumped platform Barry after two sufficiently tor. Illustrative cases are cited They jumped companions had before him. Judge in a note in that Denison’s safely. Barry Dr. alighted landed on case. heavily with shock. result feet, but some ruptured causing duodenum his death. presently For find was appear, reasons we to. theory there was was that unnecessary to consider whether infection whereby intend mishap' jump some returned denial of because performance ed act was in the manner not filed the agreed Dr. into an unintended one. reasons. require transformed There is in relation Barry companions had ment jumped after two qualifying pro loss no alighted safely. a hair Massey pulled Mr. vision similar to the one respect after millions of had persons periods his nose to notice. Sueh of limitation eyebrows pulled provisions hairs nose or head or been held to be valid McElroy plaintiff policy, injury. compliance Dr. for without beneficiary therewith a condition always precedent an that most in testified to its enforcement. v. Mas Callen port entry jury required produce to of is a A.) sachusetts Protective (C. Association C. possible scarcely (for germs); F.(2d) 694; 24 Travelers’ Insurance Co. germ (C. A.) to enter the skin without some Nax 653; 142 C. F. Whiteside v. skin. Dr. that it to the Klewer stated North American Insurance N. Y. Co., 200 possible organisms (pyogenic S.) is for (N. N. E. 35 L. R. A. a man germs) get fact, respect into a is In to wound while the in law this is not chal any lenged by a of shaving, plaintiff, presents scratch abrasion the who but two abrading grounds rubbing The of the skin for applying kind. not the rule the in entry. It is port a sufficient of stant argued could cause ease. It first reten that the question germs enter of will tion the for proofs a whether these of loss before abrading skin, breaking their without down or the return in some manner con waived the tract requirement proofs. a of difference to furnish there sueh reputable point. upon Dr. on that Reliance is had Hartford Empire men Co. v. possible to cause A.) Co. Cullings testified that it C. 802. The case of membrane is point. abrasion the mucous not in proofs There of were entry by rubbing nose; furnished, port question make a of was as to to sufficiency. their trial possible judge a sufficientabrasion The and also to cause instructed jury furnished; proper proofs were or wash with a towel cleansing the nose appellate question court considered the testimony, course, was also cloth. There immaterial, proofs retained were follicle, from which opening for re seven weeks and then removed, might liability, turned denial of and there with a port germs, but that sueh cases entry denying a position further fact that extremely rare. We think were the instruc had been taken be of the court and the tion proofs fore the of loss were furnished. In evidence, phase thereon within and on this Fortner, Continental Insurance Co. 25 F. ease, were not for conclusions (2d) 398, upon placed no reliance point, judgment reached on another proofs mere retention of loss furnished be affirmed. period after the limitation, affecting requirement The for notice to be waiver. immediately the event of accidental death In present ease, ground second re- qualified in the that it upon lied by the defendant as answer to reasonably possible give sueh notice. defense failure furnish pleading In the setting up an ex- of loss is one based rule of claimed comply cuse for failure to with the notice pleading in force in the Tennessee courts. provision, support evidence introduced in plaintiff replication filed special pleading, of such and the submission of the plea of the sought defendant in which it thereby presented issue of fact jury, up set failure excuses resultant verdict the plaintiff, joined of loss. issue we find no error the refusal of the District replications. Because the defendant Judge peremptory instruction did demur to replications, nor move ground on the defendant to give failure out, strike them claimed that it now notice of death. admitted the aas matter of law of alleged the facts therein proved at the The contention trial. This contention not convincing nor pro were furnished within the sustained authorities cited. policy presents greater vided obstacle judgment affirmance below. There is no claim of waiver of the provides furnishing ninety-day provision, of such no attack made proofs days ninety, in the event of death within its reasonableness under the or the statutes They were Tennessee, furnished on law and no claim made that the ninety-first day, though substantially pre lulled belief for- into the pared period limitation, within the and mal unnecessary so as appreciation With estoppel, as was considered full the rule create A.) forfeitures, and the Enders the law does not favor Co. v. Alliance Insurance ambiguities rule in a 293 P. 485. strictly against construed who the insurer argued It has been that in it, day’s single unfortunate as the drafts delay sufficiently formal of death case, find be in instant we earn require- complete to answer striking sound down basis in law ments provision in held ordinairily the contract ninety-day pro- comply with the failure valid and enforceable. record immaterial.' Here the vision would notice, nor exhibit contains no Judge conclude that District We draw We can contents. dence grant failing error in defendant’s merely com- than that it went verdict, ference quest for a judg- directed and the as policy requirement of the the plying with ment below is reversed. particulars “with to its of. description No identify insured.” to the MOORMAN, Judge (concurring). Circuit loss or by what is meant result, only I the concur in policy. It sufficiency contained in the their record shows that there was failure file to however, that clearly contemplated, provided proofs of loss the time in within by supplied the on forms made be policy, the but the further in for reason that very upon their thrown and some my opinion there was no substantial evidence by made the requirements provision minimum upon jury. the main issue to submit the to to forms. company failed furnish in the necessary issue it was for covering the event, “written In that occurrence, show, things, or “cut loss” of the extent only The for wound.” basis inference deemed be furnished within plucking evidence that sometimesthe are These policy. with the compliance hap- of a hair will cause an abrasion. This pro- those requirements than greater much pens rarely, though, that, so when does sec- notice. be contained vided to thought by Judge happen, SIMONS dealing notice policy of the tions mishap” meaning or “slip within be margin.1 printed in the are proofs of loss I Pope agree Case. do not with that view, accepting present purposes, but it for 1 notice Written Claim. 4. Notice Time I think the may still not sufficient to must be injury based be claim on which of given days twenty Company after within jury. to the is rare, take the ex- case to It injury. causing such the accident the date tremely rare, infecting germ en- no death event of accidental In the through an ter abrasion caused the blood Company. given to the must tice thereof may pulling of a from the hair. enter Sufficiency notice Notice. 5. Such beneficiary, through Insured which left behalf the orifice and cause Md., Baltimore, Company may be, at case septicemia where there has been abra- Company, agent any or to authorized sion, through even perhaps the mucous identify particulars Insured shall the Company. membrane, show. Fail- be notice to the be deemed to provided in give plucked a within the time notice In this ease the decedent hair ure to if it claim invalidate this shall nose, and several later a hours reasonably to have been shown pimple appeared place at or near that which possible notice such notice per- or was infected. became reasonably possible. as was soon Company facts, infer Loss. mitted to from these surmise, Forms Proof of notice, receipt me, as it that the seems infection entered usually furnished as are such forms claimant through orifice from which the hair was filing of loss. If such forms it for and to pulled, draw from that inference the days fifteen after within not ceipt furnished that there he deemed further inference was an abrasion the claimant shall of such requirements complied this to have policy skin; tearing latter inference upon submitting proof with- as to former, upon the being based with the addi- filing proofs fixed in the time evidence that an abrasion tional occur covering occurrence, proof loss, char- written pulled. I do not think when claim is which acter and extent of made. permitted speculate jury should have been Filing Affirmative Loss. 7. Time Proof possibility. latter Company furnished of loss said office in of time case of claim at its ninety disability days HICKENLOOPER, within after Judge (dis- Circuit period for which Com- termination pany senting). concur in the I conclusion that liable, of claim for oth- death, the circumstances detailed in under ninety er the date of such foregoing court, was eov- -within, 408; risks Ed. etc., Liverpool, Kearney, ered Ins. Co. v. against appellant "Whatever 136, insured. 132, 326, U. S. 45 L. S. Ct. Ed. given to the interpretation may properly 460; he Fidelity Schambs v. Co., & C. 259 F . 55, death oc- general insuring provision 59, 58, 6). 6 L. A. R. 1231 C. A. surgical major opera- curs the result of as [Pope opinion-that I am further of the the death (2'd) 29 P. tion v. Prudential Ins. here general involved is within even in 22 of 6)], part A. and oíanse Gr suring provision. The numerous eases con-" specifically here relate involved struing the phrase, “effected acci thus, pyogenic infections, and only dental can reconciled construction, familiar remove" rules of principle death or is caused subjects gen- from the consideration accident, accidental means if some unfore provision, phrases, insuring eral unless circumstance, casualty mishap, seen 'or inter "subject terms, to its and conditions” limits venes between the intentional aet provided,” and “effected as hereinbefore injury. death or This was made basis inject also, sections said Barry, decision in U. S. Mutual Aco. Ass’n v. condition 131 U. practically S. 9 S. L. 33 Ed. fection must not be accidental enters cases, al whether sense; discon- popular also denied, may lowed reconciled; just be so intentional aet of the nected with as, in practically all, engaged the insured was Practically all euts sured. accidental injured." some intentional aet when Here directly per- are connected with wounds we have the intervention accident mis aet, working, intentional of some formance hap unexpected tearing of the mucous shaving, running, walking, playing, membrane, providing “port entry”; that, say injury, it- like; and fact of being reasonably inferable, sueh tear accidental, do- purely was attended self think, I from the evidence. This tear was un aet, it there- ing of sueh intentional is some anticipated unforeseen, and an was not itself pol- operation of fore from the excluded injury for wbioh sought, is for its icy quoted phrases, indeed under the act; .may cause was an intentional and pas- popular foreign to construction regarded should be intervening as the ef and sages involved. ficient accidental cause of death of the in policy covers in sured, Gfstates that the compensation Part sought. whieh “due of death It is thus in itself an “accidental provided.” independent effected as of the antecedent hereinbefore intentional act coverage “pyogenic 22 extends the Clause factor of causation. I therefore feel that simultaneously shall infections which occur both reasons the un an accidental cut and der the is correct. provided.” me as hereinbefore To I cannot concur in the if that, conclusion an infec mean apparently it be concededthat had valid claim claim, distinguished tion is the basis policy, under the such claim was lost fail- wound, the poliqy cut from the accidental ninety ure to file days. within simultaneously occurs if the infection covers provides true that clause 7 “affirmac- in, is found with, and the seat of infection proof tive of loss” must be furnished to the although wound, purely accidental cut or such company at its said office ninety within itself is or wound suffered the cut the date such and clause 23 doing of intentional act. Such provides that failure comply popular sense, simple, common and plain, requirements contained in the practically every prospec constraetion which invalidate claims thereunder. Clause its of a purchaser tive provides the company forms should proviáons, and be followed. filing proofs loss, upon for tice, receipt of no- Transp. Co., Indep. 217 F. Ins. Co. Canton if and, sueh forms are not so furnished 1915C, 9). 213, 214, L. R. A. C. A. days, within fifteen the claimant shall be poli permitted to sell a insurer should be No complied ite deemed require- susceptible cy so to one constraetion ments of respect upon in this sub- escape liability by insured, and subtle mitting, fixed, within the time written and of interpretation, niceties phraseology “covering the occurrence, character and ex- meaning now claimed is under which tent of the loss for which claim is made.” reading. far from obvious unstudied There nois other definition of “proof of loss” say, Needless to all doubts should resolved gathered than is to be passages. from these against Thompson insurer. v. Phenix Time is not made of the essence of the con- 287, 10 Ins. 136 U. S. 34 L. The position S. tract. appellant can the burden had defendant placing in this ease sustained evi offered and them insufficient showing con- extremely technical provisions the Empire Co. made Co. Hartford must be dence. Cf. struction that 794, 802. company A.)C. only upon blanks furnished claimant if are furnished to such blanks formality preferred and are form Thus loss, and days after notice fifteen technicality substance, to susbtantial positively com- formal preju- rights. a case in And this in ninety pleted punctually filed within shown, is claimed dice difficul- notwithstanding intervening days, con- not of the essence time was sufficiency other ties, regardless of inherently. naturally, tract, expressly, detail. For- completeness or the am disclosed, I circumstances Under the favored, and, forced unless not feitures compliance was the opinion that susbtantial compelling language, by clear do not disproved forfeiture should not thus defeat otherwise should courts decreed. meritorious claim. Rehearing. man- On Petitions purpose of of loss is sole ifestly promptly advise the PER CURIAM. liability. of a claim of precisely of the nature Immediately the claimant advised a re- petition Appellant’s directed policy, written notice was existence hold- consideration of the letter defendant. This ing Noth- means. the death due to accidental possession of and was fully ing presented that was substantial although produced at the in evi- original hearing, and considered mailed it was and received. Cer- dence that denied. petition we should be think tain there is not one word appellee’s petition calls a fact attention to that dence in reeord was brought Dis- to notice either this or the definitely, formally fully, advised Court, namely, day that last trict “occurrence, all the elements re- period beneficiary was within which loss,” or deprived extent it that was May quired proofs of was to furnish slight delay right by any substantial 30th, under the statutes of the United company’s filing on the proofs forms. legal States and the laws Tennessee is holiday. appellee, mailed This aid who The defense is an one, ninety-first only if day, of loss on the burden prove circumstances connection with furnish- had received no of loss within ing ninety days, forms for or the nature it did general agent such as the issue to raise expressly receive. Had the made it precedent they condition whether or not to be returned plaintiff they establish were, service of of loss same way, and if from what ninety days, doubtless conversation, the burden of telephone stated the claimed showing the contents this letter would have mailing proofs may re- whether the claimant; been is not the garded delivery general, them to the present situation, possession letter agent day. No pre- issues are as of and its produce failure to present reeord. sented We think it, justify would seem to inference appellee’s petition in so far as asks that contained the information which the com aside and of affirmance versal be set order pany put desired —that remained to denied; entered, it should be but that view shape. such information into formal presented, the new matter the cause plaintiff pleaded replication in her should be remanded District Court provision performed, substantially had been expected a new at which it is tte and, since the offered fully cover these will more issues dence breach, relieved of serving the contents the letter also show allegation proving this in rebuttal. There is a correct decision therefore, inquire no necessity, to infer at in the of our arrived com- plead of the letter. the contents subject. upon that ment evidence, ings question explicitly new remanded Reversed and trial. furnished, one of the

Case Details

Case Name: Maryland Casualty Co. v. Massey

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 15, 1930

Citation: 38 F.2d 724

Docket Number: 5235

Court Abbreviation: 6th Cir.