Taylor v. Ætna Life Insurance

79 Mass. 434 | Mass. | 1859

Metcalf, J.

1. By the terms of the policy, the sum insured was payable in ninety days “ after due notice and proof of the death ” of Andrew Taylor. Such notice and proof were therefore prerequisite to the maintenance of this action. The defendants, in their answer, deny that they were furnished by the plaintiff with such proof. They admit, however, in the statement of facts, that there was no defect in the proof of said Taylor’s death, unless, in order to constitute due proof thereof, it was necessary to produce a sworn certificate, such as is hereinafter mentioned, of the physician who attended the deceased in his last sickness. The ground taken by the defendants is, that such certificate is a requisite and essential part of the pre liminary proof of the death, and made so, not only by the terms and reasonable intendment of the contract contained in the policy, but also by their own usage and understanding, and the usage and understanding of other life insurance companies.

To support this ground of defence, the defendants have introduced (the plaintiff’s counsel consenting) a pamphlet issued by them, which they were accustomed to give to claimants on their policies, and which, it is admitted by the plaintiff, was given to him by the defendants at the time when he presented to them his proof of Andrew Taylor’s death. Under the head of “ Proofs of Death Required,” that pamphlet contained, among other required proofs, the following: “ 1st. A certificate from the physician who attended the party during his last sickness, stating particularly the nature of the disease, its duration, and the time of death.” It was also a part of said required proof that the certificate “ should be sworn to before a magistrate or other officer qualified to administer an oath or affirmation.” As this matter is not contained in the statement of facts, we have taken it into consideration solely upon the consent of the plaintiff’s counsel that we might. But, .after adding this to the facts regularly agreed upon, we find no defence to the action. The policy does not embody nor refer to any by-law, requisition, usage or understanding of the defendants as to the kind of proof, which they should require, of the death of Andrew Taylor. Whatever, therefore, might be such by-law, requisition, usage or understanding, the plaintiff would not be bound thereby. He is bound only by the policy itself; that is, to furnish “ due proof” of the death. If the defendants would have bound the plaintiff by their by-laws, &c. they should have made the policy, in terms, subject to those by-laws, &c. or in some way have made them a part of the contract contained in the policy. Kingsley v. New England Mutual Fire Ins. Co. 8 Cush. 393, 403.

The question, what is due proof, is to be determined by the court, according to the rules of evidence, and not by the defendants nor by any other life insurance companies. We are not informed what proof of death was presented to the defendants, and it is not necessary that we should know; for it is conceded by them that the proof was sufficient, if the physician’s certificate was not a requisite part of it.

The usage of the defendants to require certain specified proof of death has been relied on in argument. In the first place, no such usage is duly shown. In the next place, if it were so shown, there is no pretence that the plaintiff had any notice of it when he took the policy. He therefore, for that reason, if for no other, could not be bound by it.

2 No authority was cited which sustains the position that Andrew Taylor, by taking passage as a steerage passenger, failed to conform to the license given to him by the defendants, to pass by sea in first class decked vessels, of which the steamship in which he took passage is admitted to be one. And the court do not know, judicially or otherwise, that life is less safe in the steerage, than in any other apartment of a vessel.

Judgment for the plaintiff.