22 Ind. App. 406 | Ind. Ct. App. | 1899
— This appeal is prosecuted from a judgment in appellee’s favor as beneficiary named in an accident insurance policy. The assignment of errors questions the sufficiency of the first, second, third, and fourth paragraphs of complaint, the refusal to grant a new trial, and sustaining
It is argued that neither paragraph of complaint sufficiently avers an accidental death. The policy provides that “No claim of any character shall ever accrue upon this contract unless it arise because of and as the direct and immediate result of physical bodily injury effected while this contract is in force, and then only when such injury undoubtedly proceeds from, and is inflicted by, external, violent, and accidental means.” Each paragraph of the complaint avers that on August 5, 1893, the insured was killed, his death resulting solely from physical bodily injuries proceeding from and inflicted by external, violent, and accidental means, the same producing immediate death. These averments are certainly sufficient. In the case of Newman v. Railway, etc., Assn., 15 Ind. App. 29, cited by counsel, where a like provision was in question, it was simply held that it must be shown that the injuries were inflicted, or at least received accidentally. Each paragraph in question shows this.
The further objection is made to the first paragraph that there is no averment as to giving of notice and proof of death. This paragraph avers that “from the time of the death” of the insured, the company “has denied and continues to deny liability” to appellee or in any respect for the payment of the amount claimed. This language of the pleading is plain, and there is no good reason why it should be read as meaning that the company denied liability from the time it learned of the death. The pleading avers a plain fact. A continued denial of liability beginning at the time of the death dispenses writh any formal proof required by the policy.
The demurrer to the second paragraph of answer to the first paragraph of complaint was properly sustained. As we have seen, this paragraph averred that the company had denied liability from the time of the death. This answer pleads in bar that no proofs of death were ever furnished as re
The second paragraph of complaint is further argued to be defective for failure to aver that proofs of death were furnished within the limited time. This paragraph avers that the insured in his lifetime complied with all the provisions and conditions of the policy, and that upon the death of the insured immediate notice thereof, satisfactory to the company, was given, but that further proof of the death was not given because waived by the company. The policy contained a condition that: “Immediate notice*of injury or death shall be given, in writing, addressed to the association at Indianapolis, Indiana, stating the name, occupation, and address of the member, with date and full particulars of the injury, or death, and causes thereof; and failure to give such notice shall render void all claims for such injury or death. Also satisfactory verified affirmative proof, in writing, of the same must be furnished by the claimant within seven months from the happening of such injury, or all claims are thereby relinquished.” It is further averred that more than ninety days had elapsed since such waiver, and that after the expiration of the ninety days, and before suit, demand was made, and liability denied. It is true the pleading must show the waiver to have become effective before the policy was forfeited through failure to perform the conditions. Immediate notice of the death was given, and this notice was satisfactory to the company. This is not a case where no notice at all was given and an attempt made to plead a waiver. A fair construction of this paragraph is that the waiver of further proof was made at the time notice of the death was given, and, this being true, there is an averment of denial of liability within the stipulated seven months. See Phoenix Ins. Co. v. Pickel, 3 Ind. App. 332.
Counsel have presented no objection to the third paragraph of complaint, other than its failure to aver an accidental death, which has already been considered.
It is argued that this paragraph fails to state facts showing a waiver of proof, and that the facts pleaded do not estop the company from insisting on the proof required. Some of the questions arising under this paragraph can be more properly discussed under the motion for a new trial. It is averred that immediate notice of the death of the insured was given. The policy then requires further satisfactory proof. "While it is no part of a company’s duty to make out a claim for a beneficiary, yet it is well settled that the company must throw no obstacle in the way of furnishing proofs. The company has seen fit to insert a clause requiring satisfactory proof within a given time, without providing in the policy what that proof shall be. When the company has been notified of the death of a policy-holder, it then becomes its duty, upon request, under the policy, to indicate what further proofs are required. Had the company indicated in the policy what these proofs should be, the case
The language quoted from Standard Life Ins. Co. v. Strong, 13 Ind. App. 315, was used by the court in' discussing a special verdict. It does not appear that the policy required an immediate notice and also satisfactory affirmative verified proof within a given time. The policy in that case provided that immediate written notice was to be given the company of “any accident or injury,” and the jury found that immediate written “notice of the death” of the insured was given, without stating what the notice was. The court held that proof of the death of the insured was not what the policy called for, and that the notice, its contents not being shown, may have referred to the injury from which the insured died, or it may not. It is further held in that case that the policy did not require the company to furnish blank forms, and that the mere fact that it refused to 'acknowledge liability could not be taken as a waiver of proof of the injury. In the case at bar it was not the duty of the company to furnish blank forms, but when it acknowledged having received notice of the death, and stated it would give the matter attention, if it required further satisfactory proofs, it was the company’s duty to indicate what further proof would be required.
In Continental Ins. Co. v. Dorman, 125 Ind. 189, it is held that the failure of the company to furnish blanks or to demand proof does not constitute a waiver where liability is not denied. This is clearly the law, but it is in no way applicable to the facts averred in the fourth paragraph of com
The court, over appellant’s objection, permitted evidence as tOiCommunications with the company relating to proofs of death more than seven months after the death; also the introduction in evidence of partial proofs of loss. If, by the acts of the company, appellee was prevented from presenting the proofs within the seven months, she was not required to' make any efforts in that respect after that time, and if partial proofs of loss were not presented until after the time, we do not see how that fact could be evidence that the proofs were presented within the time. What was subsequently done might be proper evidence of good faith efforts to procure the proof within time, especially where such efforts were a continuation of efforts made within the time to procure proofs. It might also be competent to show the character and amount of proof required as affecting the question of whether there was sufficient time to produce the proof after appellant furnished the blank requested. But it is argued that this evidence might, and probably did, mislead the jury into inferring that such partial proofs were a compliance with the terms of' the policy. In addition to that provision of the policy above noticed requiring proofs to be furnished within a certain time, there was on the back of the policy in suit a slip printed in red ink, and headed “Important Notice,” and which read: “In case of accident, notify immediately Wm. II. Beilis, secretary, Lock Box 93, Indianapolis, Ind., in order to make your claim good. State nature of injury received, and give your correct address. Failure to give this notice promptly invalidates your claim.” In case of injury to the insured he could give this notice himself, but in case of death this notice must be given by some one else. With the general verdict the jury answered interrogatories to the effect that appellant was furnished, as required by the policy, with proofs of the death of the insured by appellee, or some one acting for her, and that this proof was furnished by letter
It is further argued that the verdict is contrary to the evidence, and is not sustained by sufficient evidence. After a careful reading of all the evidence, we can not escape the conclusion that there is evidence to sustain the jury’s verdict. Appellant offered no evidence. The evidence fairly sustains the averments of the fourth paragraph of complaint. The insured was killed in Ohio, August 5, 1893. His brother, living in Boston, went to the scene of the accident August 8. He wrote appellant August 17, which appellant says it did not receive. He wrote again August 30, giving the date of the death, number of policy, name of beneficiary, with town, county, and state where she lived; that they could write to her; and requesting an answer, giving his street number in Boston. September 4, appellant answered this letter, saying it could not take up the matter with him, but must settle the matter with the beneficiary; that it was advised of his death, and the matter would have attention. This letter was received, though addressed to wrong street number. Prior to this appellant received a letter from the beneficiary, dated August 22, in which she stated she was his sister, could produce proofs of that fact; that she had learned of the death of the insured and had been instructed to write for information in regard to some insurance wdiich he carried, and asked for information. She gave her town, county, and state, and requested appellant to address her in care of “Chas. Cohen.” It is trae, she signed her maiden name, and not her name as it appeared in the policy. It is argued by appellant that it was not required to notice a letter so signed. But, in the letter of September 4, to the brother, appellant says it is advised of the death,
Counsel argue that appellant was bound to proceed cautiously, as different persons were claiming the insurance;
"We do not deem it necessary to set out the evidence showing the efforts made by appellee to procure proofs after the proof blank was furnished. Suffice it to say that, when all the facts and circumstances are taken into consideration, the remoteness of the parties from the place of the accident, the death in Ohio, and burial in Yew Orleans, and the difficulty in finding the persons required by the proof blank, the jury-might well conclude that the time given after the obstructions were removed was not a reasonable time in which to supply such proofs. It appears that these efforts to supply the required proof were continued until the company denied its liability.
The instructions given are not questioned, and they are certainly as favorable to appellant as it could ask. There is evidence to sustain the verdict, and from the whole record, we believe the case was properly decided upon its merits.
Judgment affirmed.