TYNE SLEETER v. PROGRESSIVE ASSURANCE COMPANY
No. 29,663
Supreme Court of Minnesota
March 2, 1934
191 Minn. 108 | 253 N. W. 531
Lоuis Sachs, M. H. Greenberg, and Edward Edelman, for respondent.
DIBELL, Justice.
Action by the plaintiff as special administratrix of the estate of Matt Laitinen to recover on a policy of accident insurance issued by the defendant upon his life and payable to his estate. There was a verdict for the plaintiff for $1,500. The defendant appeals from an order denying its motion for a new trial.
The policy provided as to notice:
“Written notice of injury on whiсh claim may be based must be given to the company within twenty days after the date of the accident causing such injury. In event of accidental death immediate notice thereof must be given to the company.
“* * * 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.”
This is the rule applied in classes of insurance other than accident. Hagstrom v. American F. Co. 137 Minn. 391, 163 N. W. 670; C. S. Brackett & Co. v. General A. F. & L. Assur. Co. 140 Minn. 271, 167 N. W. 798, and cases cited; Farmers & M. State Bank v. Fidelity & D. Co. 163 Minn. 333, 204 N. W. 33, and cases cited.
Nor does the phrase “reasonably possible,” found in the portion of the policy quoted, аssuming for the moment that the 20-day provision applies to accidental death, demand the doing of something impossible or obedience to a command unduly exacting. It does no more than require the giving of notice within a time which is reasonable under all the facts and circumstances. This is the construction given it. Jones v. Fidelity & C. Co. 166 Minn. 100, 207 N. W. 179; Powers v. Fidelity & C. Co. 144 Minn. 282, 175 N. W. 111; Maryland C. Co. v. Ohle, 120 Md. 371, 87 A. 763; Pacific M. L. Ins. Co. v. Smith, 166 Ark. 403, 266 S. W. 279; Great American Co-op. F. Assn. v. Jenkins, 11 Ga. App. 784, 76 S. E. 159; Rich v.
The decedent sustained an accident on October 18, 1931. He died on October 20, 1931. He was unmarried. Whether he lеft relatives in this country does not appear. There is a suggestion that all his heirs were in the old country. He left an uncle; but whether he lived here or in the old country is not clear. This uncle was the stepfather of the administratrix. Whether he was one who would take as an heir is not shown.
The plaintiff learned of the accident to the insured soon after it occurred. After his death she went to the sheriff‘s officе, where his papers were. She was not allowed to take them but saw the policy in suit and another in a Finnish organization of Ely. She employed an attorney. He applied for her appointment as special administratrix, and letters of administration dated November 6, 1931, were received on November 9, 1931. Written notice of the decedent‘s death was sent to the defendant on November 10, 1931, and it wаs received on November 11, 1931. It is a relevant consideration that not until the appointment of the administratrix was there a person authorized to give notice. Woodlock v. Aetna L. Ins. Co. (Mo. Sup.) 225 S. W. 994. Compare Globe Acc. Ins. Co. v. Gerisch, 163 Ill. 625, 45 N. E. 563, 54 A. S. R. 486. What the plaintiff did before was as a volunteer. She was not interested in the estate.
Upon the facts shown, the jury was justified in finding that “immediate notice” was given and that notice was given “as soon as was reasonаbly possible” within the meaning of the policy. A different finding would be surprising.
“If the insured shall, * * * by the wrecking * * * of any * * * private motor-driven car, while on a public highway in which insured is riding or driving, or, by being accidentally thrown from such * * * сar, suffer any of the specific losses set forth * * *.”
The complaint alleges that on October 18, 1931, the insured “sustained injuries while driving in a motor vehicle on a public highway by the wrecking of said automobile and injuring himself severely, by reason of which he died on October 20, 1931.”
The answer contained a general denial. In addition, it specifically traversed the allegations of the complaint quoted; and as a dеfense it alleged:
“That whatever injuries the said Matt Laitinen sustained at the said time that said injuries or any part thereof were caused by accidental means but were sustained by reason of the voluntаry act of the said Matt Laitinen in that he drove and operated the said automobile while he was intoxicated and under the influence of intoxicating liquor to the extent where he was unable by reаson of said intoxication to control and operate the said automobile in a safe manner and that the said injuries were sustained solely by reason of his voluntary, careless and negligent acts in the operating and driving of said automobile while in said intoxicated condition.”
For a further defense the defendant alleged that when the insured “sustained the injuries herein he was engaged in violating the law of the state of Minnesota in driving his motor vehicle upon a highway while in an intoxicated condition and that in consequence of the violation of the law as heretofore stated the said injuries werе sustained and that the said injuries were the direct result of the unlawful act of the said Matt Laitinen in so operating and driving his said motor vehicle while in an intoxicated condition.”
The burden of proving that the death of the insured was within the terms and conditions of the policy was upon the plaintiff. Milliren v. Federal L. Ins. Co. 185 Minn. 614, 242 N. W. 290; Huestis v. Aetna L. Ins. Co. 131 Minn. 461, 155 N. W. 643; Farrar v. Locomotive Engineers M. L. & A. Ins. Assn. 143 Minn. 468, 173 N. W. 705; Silva v. Fidelity & C. Co. 252 Mass. 328, 147 N. E. 858; Wilkinson v. Aetna L. Ins. Co. 240 Ill. 205, 88 N. E. 550, 25 L.R.A. (N.S.) 1256, 130 A. S. R. 269; Order of U. C. T. v. Nicholson (C. C. A.) 9 F. (2d) 7; 5 Joyce, Ins. (2 ed.) § 3791; 8 Couch, Cyc. Ins. Law, § 2239; 6 Cooley, Briefs on Ins. (2 ed.) p. 5283; 1 C. J. p. 496, § 284.
The evidence offered by the plaintiff was directed to the giving of notice. None оf it referred to the facts attending the accident. The question submitted to the jury was whether notice was given as required by the policy. If it was, there was to be a verdict for the plaintiff; if not, for the defendаnt. The plaintiff testified. She had no knowledge of an accident to the insured. She read of one in a Virginia paper. No one else testified about the accident. There was no evidencе that the insured was riding or driving in or thrown from an automobile. There was no evidence that his auto was wrecked. There was no evidence by anyone who knew, of an automobile on a public highway. There was no evidence of an injury to the insured within the terms of the policy. It may be inferred from the briefs and from the pleadings that there was an accident of some kind. In alleging a defense, which it deemed аffirmative, the defendant referred to an accident to the insured. And it was stipulated at the trial that the insured “died on October 20, 1931, from the accident which occurred on October 18, 1931.” If we could say that the case was tried upon the theory that insured sustained an injury while driving his auto on a public highway by accidental means, by the wrecking of his auto or by being thrown from it, within the wording of the policy, we might apply the law аnd determine whether accidental means resulted in the insured‘s death directly and independently of all other causes, and whether there was error in rejecting defendant‘s offer of proof. Therе is no
In view of a new trial, it is not improper to say that the policy says nothing as to the effect of intoxication. Often policies do. See Thompson v. Bankers M. C. Ins. Co. 128 Minn. 474, 151 N. W. 180, Ann. Cas. 1916A, 277; Flannagan v. Provident L. & A. Ins. Co. (C. C. A.) 22 F. (2d) 136; Robinson v. Hawkeye Commеrcial Mens Assn. 186 Iowa, 759, 171 N. W. 118; Fuller, Acc. & Emp. Liability Ins. p. 141; 6 Cooley, Briefs on Ins. (2 ed.) p. 5356; 4 Joyce, Ins. (2 ed.) § 2612; Vance, Ins. (2 ed.) p. 904. We do not understand that the defendant claims that intoxication is of itself a defense. Its claim is that an acсident was not the proximate cause of the death of the decedent under the policy requiring death to result from accidental means directly and independently of all other causes; thаt is, that the insured‘s intoxication was the proximate or at least a proximately coöperating cause of his death.
Nor does the policy provide as do many that an accident in the course of violation of law precludes a recovery. See
Nor does the policy make diligence a requisite of recovery, nor the fact of a voluntary exposure of the insured to danger, nor the presеnce of contributory negligence, a defense. See Wilson v. N. W. Mut. A. Assn. 53 Minn. 470, 55 N. W. 626; Travelers Ins. Co. v. Randolph (C. C. A.) 78 F. 754; Richards v. Standard A. I. Co. 58 Utah, 622, 200 P. 1017, 17 A. L. R. 1183; Providence L. Ins. & Inv. Co. v. Martin, 32 Md. 310; Zurich G. A. & L. Ins. Co. v. Flickinger (C. C. A.) 33 F. (2d) 853, 68 A. L. R. 161; Vance, Ins. (2 ed.) p. 894; 6 Cooley, Briefs on Ins. (2 ed.) pp. 5376-5380; 5 Joyce, ins. (2 ed.) § 2846; Dec. Dig. Ins. § 461(1).
The finding of the jury that timely notice of the decedent‘s death was given is satisfactory. A different conclusion should not have been reached by the jury. The trial was fair. The рractice of excluding from a new trial issues which have been determined satisfactorily upon a fair trial, when such exclusion will not result in prejudice, finds approval in our cases. Hagstrom v. McDougall, 131 Minn. 389, 155 N. W. 391; Ertsgaard v. Bowen, 183 Minn. 339, 237 N. W. 1; Stolp v. Reiter, 190 Minn. 382, 251 N. W. 903; 5 Dunnell, Minn. Dig. (2 ed. & Supp.) § 7079. The issues uрon the fact of notice, discussed in the first three paragraphs, will not be retried. The fact of the giving of notice in proper time stands as a fact settled. The new trial ordered will be upon the issues exclusive of the issues as to the giving of notice.
DEVANEY, Chief Justice, absent in attendance upon board of pardons, took no part.
PER CURIAM.
For the reasons given in the foregoing opinion, prepared by the late Justice Dibell, and in harmony with the views of the court, the order appealed from is reversed.