124 Mo. 204 | Mo. | 1894
The defendant is an accident insurance company, doing business on the assessment plan, and in June, 1886, issued and delivered to Thomas McFarland, plaintiff’s husband, a beneficiary certificate wherein, for a sufficient consideration, it promised to pay to plaintiff $3,000 within sixty days after proof that Thomas McFarland shall have sustained bodily injuries effected through external, violent and accidental means, and such injuries shall have occasioned death within ninety days after the happening thereof. The said certificate contained a further agreement on the part of defendant, in the following words:
“Or if said member (referring to Thomas McFarland, plaintiff’s husband) shall sustain bodily injuries by means as aforsaid, which shall, independently of all other causes, immediately and wholly disable and pre
The certificate also contains the following conditions :
“2. In the event of any accidental injury for which claim may be made under this certificate, immediate notice shall be given in writing addressed to the secretary of this association at New York, stating the full name, occupation and address of the member with full particulars of the accident and'injury; and also in case of death resulting from such injury, immediate notice shall be given in like manner; and failure to give such immediate written notices shall invalidate all claims under this certificate; and unless direct and affirmative proof of the same and of the death or duration of total disability shall be furnished to the association within six months after the happening of such accident, then all claims accruing under this certificate shall be waived and forfeited to the association.”
“4. No claims shall be payable under this certificate, unless any medical advisor of the association shall be allowed to examine the person or body of the member in respect to any alleged injury or cause of death, when and so often as may be required on behalf of this association.” ,
“6. All the provisions and conditions aforesaid and a strict compliance therewith during the continuance of this certificate are conditions precedent to the issuing
The petition declares upon the certificate as the contract between the parties, and, among other things, charges that Thomas McFarland’s death was occasioned solely by injuries effected through external, violent and accidental means, and alleges that plaintiff gave immediate notice of McFarland’s death, and furnished proof thereof within six months after the happening of the accident, and that all the conditions of the certificate were fully complied with by her.
The answer denies that McFarland’s death was-caused by accidental means, or by injuries, and charges that it was occasioned by causes against which defendant did not insure him. And, as a further defense, among other things, pleads the second, fourth and sixth conditions of the certificate, and charges that no notice whatever of the accident and injuries to Thomas McFarland was given to the defendant, as required by said second condition, that no notice of the death of said Thomas McFarland was given to defendant, and that proof of death was not furnished within six months from the happening of the accident, by reason of which plaintiff’s claim, if she ever had any, which defendant expressly denies, is waived and forfeited.
The reply alleges that plaintiff did give to defendant, immediately after the death of Thomas McFarland, both notice and direct and affirmative proof of his death, and that defendant has waived all claim and right to any further or additional or any notice or proof' that he died by the means and in the manner alleged in the petition.
This is in substance the statement of the appellant,, and fairly presents the issues.
From the date of the. accident until the death no notice was given the association of the injury, though an assessment was paid by McFarland about the first of July.
Plaintiff testified that a few days after the death of her husband she wrote a letter addressed and directed to the United States Mutual Accident Association, 320-322 Broadway, New York. This letter she stamped and deposited in the postoffiee at St. Joseph. In this letter she wrote: “My husband is dead and buried; he has died from an accident -caused by a fall; if you wish any further information, write and let me know and I will inform you as far as I know.” She also testified that in this letter she informed the association that her husband was a member holding certificate number 6682.
Plaintiff testified further that, receiving no answer to this letter, she wrote again in a short time to like
While the evidence of defendant’s witnesses and all the circumstances cast much doubt on the truth of this evidence, its credibility was a matter for the jury, and we must treat that evidence as being true.
Direct and affirmative proof of the accident and of the death was not made «until December following, which was within six months after the death, but not within that time after the injury.
I. Upon this state of facts defendant insists that all claims for idemnity were forfeited by reason of not giving the association immediate notice of the accident and injury, and in not making direct and affirmative proof of the death within six months after the accident. A consideration of these questions, involves a construction of the contract of defendant.
Such contracts should be given a fair and reasonable construction so as to carry out and effectuate the objects and purposes intended by the parties. It will be seen that the indemnity provided under the certificate is twofold, under either or both of which a right to indemnity accrues. One of these requires an immediate total disability to carry on the occupation of the member. Until that accrues there is no liability on the part
But there may be injuries effected through “external, violent accidental means,” which alone may occasion death within ninety days after the happening thereof, which may not, for some time, produce total disability. It will be observed that indemnity from the death of the member does not, under the contract, depend upon the fact that the injury caused immediate total disability.
This seems to be a case of that character. Unless there was a total disability resulting from the accidental injury of McFarland, he had no claim which could be forfeited, and, therefore, the occasion had not arisen which required that notice of the accident should be given. The evidence showed conclusively that total disability did not occur until he was taken to his bed and that death resulted within twenty-four hours thereafter. The condition, then, which required giving immediate notice of the accident and injury did not arise under the terms of the contract when fairly interpreted.
The only claim to indemnity accruing under this contract is on account of the death of the member, and the question is, whether timely notice was given thereof. The conditions contained in the second clause of the contract, requiring notices, and proof of accident,
This condition, in respect to making proof of death operates upon the contract subsequent to the fact of loss. It should, therefore, receive a liberal and reasonable construction in favor of the beneficiary under the certificate. McNally v. Ins. Co., 137 N. Y. 389.
Taking the body of the contract, and all of its conditions, and construing them together, it appears that the required notices should be given within a reasonable time after the right to indemnity accrued and that proof of death should be made within six months after the cause which created the necessity for the notice occurred. This construction is clearly within the spirit of the contract; it is fair and just to the beneficiary, and works no hardship upon the association. On the other hand, to require that
Forfeiture?-, are not favored, and conditions which work forfeitures should be strictly construed against the party making them. 2 May on Insurance [3 Ed.] sec. 367. Hence we are of the opinion that, under a reasonable construction of the contract and the annexed conditions, no forfeiture of a death loss would occur by reason of a failure to give notice of the accident and injury, unless they were of such a character as to create a claim on account of disability. And, further, that direct and affirmative proof of death, in such case, if made within six months thereafter, was within the time required.
II. It is unnecessary to reviewthe evidence in order to show that the accident and injury to McFarland did not cause immediate total disability. We can accept the conclusions reached by defendant’s counsel on that question. They say in their statement that, according to the testimony of plaintiff, “during the interval between the accident and death of McFarland he was out on the street with his wagon every day up to, and on, the day of his death, driving over the city, hauling and delivering parcels and packages weighing as much as thirty or forty pounds.” And, according to the evidence of defendant, McFarland followed his usual avocation regularly every day and preformed his usual laborers every day during the last two months of his life. We think these conclusions as to the effect of the injury fairly drawn from the evidence. There was no evidence of total disability and no notice of the injury was required.
So, though the time in which the irotice shall be given is fixed under the contract, if the circumstances of the accident are such as to make it impossible to comply with the condition, giving the notice within a reasonable time after it becomes possible, has been held sufficient. Trippe v. Provident Fund Soc. (N. Y. Ct. of App.), 35 N. E. Rep. 316.
Plaintiff gave the notice within a few days after the death of her husband. He died July 12, 1888. Not hearing from defendants she wrote again within a week or two, and during the same month. The first notice must have been given, at latest, 'within ten days after the death . occurred. In the circumstances we think the notice was given within a reasonable time. “Whether due diligence has been used in giving the notice is a question which is ordinarily left to the jury, to be found from all the circumstances in the case. But where the facts and circumstances bearing upon the question of due diligence are not in dispute, it becomes a question of law for the court.” 2 May on Ins. [3 Ed.], sec. 462.
The question of diligence was left to the jury in this case, though the only dispute was as to whether the letters, by ■ means of which the notice was given, were ever written and forwarded at all. We think the
IY. The letter written by plaintiff, addressed to defendant at its office in New York, properly stamped and mailed, was a sufficient compliance with the conditions requiring notice. The condition itself requiring that the notice should be addressed to the secretary of the association at New York, makes it manifest that the parties contemplated that it should be forwarded through the mails. The fact that these letters were mailed at St. Joseph is evidence that they were received by defendant at New York. 1 Gfreenleaf on Ev., sec. 40. The notice was given in .the proper manner.
Y. We think also that the letter written by plaintiff gave defendant all the information required under the contract when the claim is on account of the death of a member. The notice of an accidental injury is required to give the full name, occupation and address of the member, with full particulars of the accident and injury; but in the case of death immediate notice thereof “in like manner,” only is required. The words in “like manner” refer, evidently, to the method of giving the notice, and not to the information required to be given thereby. It was only necessary to give such notice as would advise the association that death had occurred from accidental injury. This we think the letter did.
The first instruction given at the request of plaintiff authorized a recovery without proof that the requisite notice of the accident and injury was given, thereby assuming that the nature and extent of the injury was
VI. Objection is made that plaintiff offered no evidence io show that the sum of $3,000 represented the true amount due under the certificate at an assessment of $2 each upon the members. In other words it is insisted that the burden rests upon plaintiff to prove what principal sum represented the proper assessment of the members under the certificate.
The certificate of membership provided, in case of the death of McFarland, for the payment to plaintiff of “the principal sum represented by the payment of $2 by each member of division C of the association,” not to exceed $3,000. The certificate further provides:
“On and after March 1, 1883, and until such time as each of Divisions AAA, B, O, D and E, have a sufficient membership to pay death losses in full, the principal sum represented by an assessment of $2 upon the members of all of said divisions (which sum is not to exceed $3,000), will be paid to beneficiary as provided in this certificate.”
On this question the authorities are not harmonious, some holding that the beneficiary is required to show the amount payable upon proper assessment of members as provided by the certificate. Of this class are the cases of O’Brien v. Benefit Society, 117 N. Y. 319, and Newman v. Benefit Association, 72 Iowa, 212.
Other authorities hold that the certificate is prima facie evidence of the maximum amount which may be collected, and defendant must plead and prove that a less amount would be realized on an assessment of the members under the certificate. Of these may be cited:
This question has, however, been put at rest in this state by the statute which authorizes and regulates insurance companies on the assessment plan. It requires all policies to specify the exact sum of money which the company promises to pay upon the happening of the contingency insured against and also requires the payment of such sum upon the occurrence of such contingency. R. S., sec. 5862. The case of Taylor v. National Temperance Union, 94 Mo. 40, is no longer an authority on this question since the statute has been in force.
VII. The case was tried in Andrew county, and Dr. McCranor, a witness for plaintiff, resided in St. Joseph, in Buchanan county. The deposition of this witness had been taken, and was on file in the ease. The witness was also present in court until plaintiff closed her case in chief, after which he returned home. After the close of defendant’s evidence plaintiff offered to read the deposition of this witness, to which defendant objected on the ground that witness was present, in court, until plaintiff closed her case in chief, and the deposition was not, therefore, properly admissible. The objection was overruled and the deposition was read. The evidence contained in the deposition tended to prove, and was intended to prove, that the death of McFarland was the result of the accident, and was evidence necessary to make out plaintiff’s case, and should have been introduced in chief. It was not rebutting testimony. It did not appear that the absence of the witness was with the consent or collusion of plaintiff, or her attorneys, or that specific objection was made
The order of the introduction of evidence is a matter of practice largely Avithin the discretion of trial courts, irregularities in that particular are not ground for reversal, unless it clearly appears that tlie discretion was abused, to the prejudice of the objecting party, or that an unfair advantage was attempted by the party offering it. Burns v. Whelan, 52 Mo. 520.
A deposition of a witness, residing in another county, and which has been regularly taken, stands in the place of the absent witness, and, in the absence of the witness, can be read in evidence at any stage of the trial in which the testimony of the witness himself would have been admissible. The objection that the deposition could not be read because the witness had been present during a part of the trial can not be sustained.
Had the objection been made that the evidence was properly in chief, and was offered out of its regular order, the witness being present when his testimony should have been introduced, such suspicion would have been raised as to the purpose for withholding the evidence, as should have required, at least, satisfactory explanation before the deposition should have been admitted.
VIII. We are asked to reverse the judgment on the ground that the verdict was against the weight of the evidence on the question of giving the notice of the death, and whether the death was the result of the accident. It must be admitted that the evidence in support of each of these issues was very unsatisfactory, but it can not be said that there was no substantial, evidence at all in proof of these facts. In such case the question is one for the determination of the trial court and this court will not ordinarily interfere.