Thе executrix of the will of Lee R. Pittinger, late of Boston, who died July 10, 1927, brought this action against The Commercial Travelers Mutual Accident Association to recover for the death of the insured by accidental means under a policy of accident insurance, admittedly issued by the defendant on July 6, 1927, payable in case of loss of life to his estate.
A copy of the policy is set forth in the record. The policy .is entitled a “Double Benefit Certificate Assessment System,” and provides that “This Certificate insures upon the conditions therein named, against loss by accidental means of life, limb, sight and time,” and certifies “that in consideration of the membership fee paid and the statements contained in his application for membership, a copy of which is hereto annexed Lee Ross Pittinger ... is hereby accepted as a member of this Association, and said Association does hereby insure him, during the continuance of his membership, subject to all conditions and limitations contained in this Certificate of Membership” against loss
Among the “conditions” referred to are the following: “7. . . . notice of every death for which claim may be made shall be given within twenty days after such death occurs, to the Secretary of the Association, at its office, No. 70 Genesee Street, Utica, New York, with full particulars of the accident and its results, and such notice when actually received by the Association at its said office within said twenty days, shall be deemed sufficient notice; . . . this Association upon the receipt of such notice will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss .... Affirmative proof of loss must be furnished to the Association at its said office in сase of claim for loss . . . within ninety days after the date of such loss .... 10. This Association shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require, and also the right and opportunity to make an autopsy, in case of death, where it is not forbidden by law, and also the right and opportunity to be present in any case at an autopsy performed on the body of a member under the direction of a public officer, or by the authority or consent of his beneficiary or family. ... 12. This contract is for all purposes deemed to be executed within, and to be construed in accordance only with the laws of the State of New York. ... 15. No statement made by the applicant for this insurance, which statement is not incorpоrated in or endorsed upon this certificate or contained in the application' therefore, shall avoid this Certificate or be used in any legal proceeding arising under this Certificate. ... 18. This Certificate, with the annexed copy of the application therefore, constitutes the only and the entire contract of insurance between this Association and said member.”
Aсcording to the copy of the policy set forth in the record no “copy of the application therefore” was annexed thereto.
The record sets forth a copy of a letter to the defendant dated July 26, 1927, giving notice of the death of the insured by accident and proofs of loss bearing dates October 5, and October 6, 1927, “consisting of three sheets bound together, one sheet being on the form furnished by the defendant,” another being a letter from a medical examiner for Suffolk County dated October 5, 1927, stating that he performed a post-mortem examination on the body of the insured, but not stating the date or the circumstances thereof, and the third being a certificate of the death of the insured. No question was raised as to the sufficiency of the notice or proofs of loss.
Defence to the action was made on three grounds: (a) that the insured did not die by accidеntal means, (b) that condition 10 of the policy was not complied with, and (c) that recovery was barred by a false answer to question 37 of the application. The plaintiff contended that the last two defences were waived by the defendant.
The judge refused to rule as requested by the defendant with regard to the defences based upon alleged noncompliance with condition 10 of the policy and the alleged false answer to question 37 of the application, and submitted the case to the jury on the single issue whether the insured died by accidental means. There was a verdict for the plaintiff and the judge, reported the case upon the following terms: “if my rulings and charge were correct then judgment is to be entered on the verdict; if the case should have been submitted to the jury on the question whether or not upon all the evidence the defendant had waived such defences as were not submitted to the jury, then a new trial is to be had upon the issue of waiver first, and if the jury find no waiver by the defendant then only upon such additional defences as were not waived but should have been sub
No question of pleading appears to have been raised at the trial or is reported for our consideration. Weiner v. D. A. Schulte, Inc.
First. The judge was right in not submitting to the jury either the question whether the defence of noncompliance with condition 10.of the policy was waived or the question whether that condition was complied with.
The defence that condition 10 of the policy was not complied with relates only to that part of the condition which provides that the defendant shall have “the right and opportunity to be prеsent in any case at an autopsy performed on the body of a member under the direction of a public officer, or by the authority or consent of his beneficiary or family.” This provision was proper as affording protection to the insurer against fraudulent claims and also against claims which, although made in good faith, were not valid, but it is not to be interpreted as requiring the impossible or the unreasonable. Loesch v. Union Casualty & Surety Co.
1. The evidence, in its aspect most favorable to the plaintiff, did not warrant a finding that the defence of noncompliance with condition 10 of the policy was waived by the defendant.
There is no substantial dispute as to the facts in respect to this matter. It was agreed that the duties of the defendant’s secretary and treasurer included taking “full charge of the running of the business for the Association in an executive capacity.” He admitted sending to the plaintiff’s attorney a letter dated November 15, 1927, “subsequent to due filing of proofs of loss by the plaintiff,” stating that the defendant’s board of directors had “carefully considered the Proof of Loss . . . and . . . rejected the claim made ... by the Estate of Dr. Lee R. Pittinger,” and that “The claim is rejected upon the ground that Dr. Pittinger’s death was not caused by accidental means, or any means covered by the Certificate of Membership issued to him by this Association.” The defendant’s secretary and treasurer testified without contradiction that “the fact that an autopsy had been held, without first notifying the Association” was “considered in rejecting
The defendant did not at the trial waive the defence of noncompliance with condition 10 of the policy, but, on the contrary, as the record shows, insisted upon it. Nor was there evidence of any express agreement before the trial that the defendant' would not insist upon this defence. Waiver of the defence of noncompliance with the condition or estoppel to insist upon it resulted, if at all, from the defendant’s letter of November 15, 1927, — sent to the plaintiff after it had received the proofs of loss and had considered the fаct that an autopsy had been held without notice to the defendant — rejecting the plaintiff’s claim on the ground that the death of the insured was not caused “by accidental means, or any means covered by the Certificate.”
There was no foundation in the evidence for a finding that the defendant was estopped — by a true or a “promissory” estoppel (see Williston on Contrаcts, §§ 139, 679, 689, 691-693) — to insist upon noncompliance with condition 10 of the policy as a defence to the action. It did not appear, as would be essential to show estoppel, that the plaintiff relied to her prejudice upon the defendant’s letter. This is not shown to be “a case where the plaintiff has been induced to forego doing something which he might have done had he not been lulled into a false belief that nothing more was necessary.” McCord v. Masonic Casualty Co.
Nor would the evidence justify a finding that there was a “waiver” as that term is ordinarily understood. “There can be no waiver of a right unless the right is known and it was intended to surrender it.” Boston Elevated Railway v. Maryland Casualty Co.
2. The evidence in its aspect most favorable to the plaintiff did not warrant a finding that condition 10 of the policy was complied with or that circumstances excused compliance therewith.
Apparently it was undisputed that on July 13, 1927, Dr. Timothy Leаry, a medical examiner of Suffolk County, performed an autopsy, referred to in the proofs of loss, on the body of the insured — though it is contended that the autopsy was not an official autopsy and, for that reason, not within the terms of the policy. But even if this matter was in dispute there was no evidence for the consideration of the jury negativing these facts, and an affirmative finding of compliance with condition 10 of the policy could not have been made on the ground that there was no such autopsy.
Nor could compliance with the condition have been found on the ground that the autopsy, if made, was not within the terms of the condition. The evidence did not warrant a finding that the autopsy, referred to in the proofs of loss, was not performed "by the authority or сonsent” of the "family” of the insured. The right of possession of a dead body for the purpose of burial or other lawful disposition and, consequently, for the purpose of an autopsy, subject to some limitations in the public interest, is vested, at least in the absence of a different provision by the deceased, in the surviving husband, wife or next of kin. Burney v. Children’s Hospital,
There was no evidence that the defendant had a reasonable opportunity to be present at the autopsy. Such an opportunity would imply seasonable notice that an autopsy was to be performed. Compare Wilcox v. Massachusetts Protective Association, Inc.
A finding was not warranted that it was impossible or even unreasonable for the defendant to have the right and opportunity to be present at the autopsy referred to in the evidenсe. It did not appear that the presence of a representative of the defendant at such autopsy would be un
Second. It is unnecessary to determine whether any question should have been submitted to the jury with reference to the defence based on the alleged false answer to question 37 of the application. Even if, as to this defence standing by itself, thеre was a question or questions for the jury, findings thereon would have been of no effect in view of our decision with reference to the defence based on noncompliance with condition 10 of the policy.
Third. Judgment should be entered for the defendant. The plaintiff had an opportunity to present her case fully
Judgment for the defendant.