296 Mass. 535 | Mass. | 1937
The plaintiff is the beneficiary named in a policy of accident insurance issued by the defendant which insured her husband “against loss resulting directly and independently of all other causes, from bodily injuries effected . . . solely through accidental means” and provided that for loss of life thus caused the insurer would pay the plaintiff $15,000. The policy also contained the provision: “This insurance shall not cover accident, injury, disability, death or other loss caused directly or indirectly, wholly or partly, by bodily or mental infirmity ... or by any other kind of disease . . . nor shall it cover suicide, sane or insane . . . .” The insured received injuries on September 3, 1934, while driving his automobile and died on the following day.
The trial judge in the Municipal Court of the City of Boston found for the plaintiff, filed a statement of findings of fact and reported to the Appellate Division his rulings and his refusals to rule as requested by the defendant. The Appellate Division ordered the report dismissed.
The main contentions of the defendant are: (1) that the only rational inference permissible by the evidence is that the physical condition of the insured caused or directly contributed to cause his death and hence that there was not such an accident as is covered by the policy, and (2) that “immediate notice” of the death of the insured was not given to the defendant within the requirements of the policy.
1. There was testimony given by lay witnesses and by physicians called by the defendant which, if believed, would tend to support the contention of the defendant that the physical condition of the insured played a causal part in the accident. This testimony need not here be related. It was for the trial judge to determine whether
The plaintiff introduced evidence that on the morning of September 3, 1934, the insured, a physician living in Stoneham in this Commonwealth, was seen by witnesses driving alone in his automobile on the right hand side of a public highway in Winchester at the rate of speed of thirty-five to forty-five miles an hour, that the speed of the automobile slackened slightly for an instant, and that the automobile then turned suddenly and “shot across” the street to its left, went off the road and collided with a tree while going at the rate of thirty-five to forty-five miles an hour. The insured received serious bodily injuries. Immediately after the collision he was unconscious but soon regained consciousness. He was removed to the Winchester Hospital and died there on the evening of the following day. The highway was dry and in a fair state of repair and there was no other vehicle in the immediate vicinity of the scene of the accident.
The foregoing evidence taken by itself would warrant the conclusion that the physical injuries received by the insured when his automobile struck the tree came by “accidental means” within the meaning which must be given to those words in the policy. The phrase “'accidental means’ is used in the contract of insurance in its common significance of happening unexpectedly, without intention or design.” Bohaker v. Travelers Ins. Co. 215 Mass. 32, 33-34. Sontag v. Galer, 279 Mass. 309, 312, and cases cited. Kramer v. New York Life Ins. Co. 293 Mass. 440, 444-445.
The death certificate stated the cause of death to be “shock, following automobile accident. Collided with a pole. Comminuted fracture left knee and femur.” The judge found that the insured died of pneumonia induced by traumatic shock following the accident but also found that he would not have died but for injuries sustained in
On all the evidence the finding was warranted that the accident was the proximate and the sole cause of the death of the insured.
2. The policy provided that: “In event of accidental death immediate notice thereof must be given to the Company ... by or in behalf of the Insured or Beneficiary, as the case may be ... . Failure to give notice within the time provided in this Policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.” The defendant contends that notice was not given seasonably within the requirements of the policy.
The requirement in an insurance policy that “immediate” notice of loss be given means that such notice “shall be sent as soon as the exercise of reasonable diligence will enable the assured to send it.” Parker v. Middlesex Mutual Assurance Co. 179 Mass. 528, 530. Smith v. Scottish Union & National Ins. Co. 200 Mass. 50, 53-54. Bennett v. Aetna Ins. Co. 201 Mass. 554, 556. The meaning is substantially the same when the requirement is that notice of death under an accident policy be sent “as soon as may be possible.” Everson v. General Accident, Fire & Life Assurance Corp. Ltd. 202 Mass. 169, 174. In Wilcox v. Massa
Pertinent circumstances with respect to the giving of notice in the present case are here briefly summarized: The plaintiff, at the time of her husband’s death, was living in California and had been living apart from him for over a year. She was informed by telephone of his death on the evening it occurred, September 4. > The next day she started east by aeroplane arriving at New York late on September 6 and at Boston on the morning of the funeral, September 7. There was evidence which would warrant the finding that on September 8 she returned to New York. On September 10, which was six days after the death and three days after the funeral of the insured, the plaintiff’s attorney first learned, from an employee of the defendant, that there was in force a policy of accident insurance issued by the defendant to the insured in which the plaintiff was named as beneficiary. He thereupon gave to the defendant oral notice of the death of the insured. The policy did not require that such a notice should be given in writing. Counsel for the defendant stated at the trial that no question was raised as to the sufficiency of the phraseology of the oral notice. Its only contention is that notice was not shown to have been seasonably given. A formal written notice of the death was given to the insurer by the plaintiff’s attorney on September 14.
The insured for a long time had a policy of accident insurance issued by the defendant. It was renewed yearly upon acceptance by the defendant of the payment of an annual premium. At the end of each year covered by the policy the company upon payment of a premium determined whether or not the insurance would be renewed for another year.
While the plaintiff was living with her husband she drew checks in payment of his bills including the payment of
On all the evidence the finding was warranted that she did not know there was in force in 1934 an accident policy in which she was named as beneficiary until after September 10. Her ignorance of that fact was a circumstance to be considered on the question whether she used due diligence in giving notice to the company of the insured’s death. Verelst’s Administratrix v. Motor Union Ins. Co. Ltd. [1925] 2 K. B. 137. Federal Life Ins. Co. v. Holmes’ Committee, 232 Ky. 834. Metropolitan Life Ins. Co. v. People’s Trust Co. 177 Ind. 578, and cases cited. Solomon v. Continental Fire Ins. Co. 160 N. Y. 595. We think the evidence justified the conclusion that the plaintiff used due diligence under all the circumstances in giving the notice with reasonable promptness.
3. The only request by the defendant for a ruling on the matter of giving notice was: “Upon all the evidence the plaintiff cannot recover, because immediate notice of the death of . . . [the insured] was not given to the defendant company within the meaning of the policy.” The trial judge disposed of this request by the notation “Not granted; I do not so find.” The finding filed by the judge stated: “I rule that the oral notice of death on September 10, supple
Order dismissing report affirmed.