225 Mass. 335 | Mass. | 1916
On September 28, 1912, Joseph Harry Page, a man of about fifty-five years, became a member of the defendant asso
October 22, 1912, about noon, the insured was walking up State Street, in Boston, toward Washington Street, on the right hand side. As he came to the corner of State Street and Merchants Row he stumbled and fell. He died within a few minutes apparently without recovering consciousness. November 5 and 6, 1912, the beneficiary filed with the board of directors her own affidavit, “that the death of the said member was caused wholly and entirely by external, violent and accidental means, to wit, by a fall to the sidewalk, caused by tripping thereon . . the affidavit of a witness to the accident, “I saw Mr. Page as he turned from State Street toward Merchants Row and tripped on an irregularity on the sidewalk and was thrown, striking on his head;” the affidavit of a person who knew the deceased, “That I saw the body of the deceased after death, to wit, on the twenty-second day of October, 1912, and I knew it to be the body of the said Joseph H. Page whom I knew and who died as aforesaid;” the affidavit of the undertaker, who stated in answer to the question, “What was the cause of death?” copied from medical examiner’s death certificate, “Coronary Sclerosis, Chr. Arterio Sclerosis;” and the death certificate, recorded October 26, 1912, wherein it is stated that the primary or secondary cause of death was Coronary Sclerosis, Chronic Arterio Sclerosis. November 25, 1912, the board of directors by letter advised the beneficiary that her claim was disallowed, “as proofs filed at this office on November 6th, 1912, are not satisfactory to this Board. It appears from said proofs that Mr. Page’s death was due to disease, i. e., coronary sclerosis and chronic arterio sclerosis, and not to external, violent and accidental means.”
The presiding judge at the trial refused to rule “That the proofs'
The judge submitted to the jury the question whether the preliminary proof “was such as to convince reasonable men acting reasonably that the death did happen wholly on account of the accident, solely on account of the accident,” and stated that an affirmative determination of this issue “is a condition precedent to the maintenance of the action.”
The defendant did not except to that part of the charge which dealt with the law which should govern the jury in determining the sufficiency of. the proofs submitted to the board if it were proper upon the proofs furnished the directors to leave to the jury the issue whether reasonable men, acting reasonably, should have been satisfied that the death of the insured was due wholly and entirely to the injuries sustained by the accident. The evidence of a stumble and fall to the sidewalk, of a blow on the head, of an unconscious condition and of almost immediate death, would require the conclusion that death was due wholly and entirely to the injuries sustained by the accident, were it not for the certificate of death, that the cause of death was coronary sclerosis, chronic arterio sclerosis. These positive and undisputed statements of fact control the inferences of the cause of death naturally arising from the mere fact of fall and of physical injury, and make it impossible to say as a matter of fact, that the directors as reasonable men acting reasonably ought to have decided' that death was due wholly and entirely to the accident.
If this conclusion be a seeming hardship to the plaintiff, it results from her failure to perform the voluntarily assumed condition of the agreement of the insured, — that the beneficiary shall furnish sufficient proof to the directors to satisfy reasonable men acting reasonably that death was due wholly and entirely to the. injuries sustained by the accident. Traiser v. Commercial Travellers’ Eastern Accident Association, 202 Mass. 292.
The exceptions are sustained and judgment must be entered for the defendant under St. 1909, c. 236.
So ordered.
