167 Mich. 31 | Mich. | 1911
Plaintiff, as beneficiary named in the
certificate issued by defendant to her husband, Marcus Thompson, during his lifetime, recovered a judgment for $520.84 in the circuit court for Bay county.
This certificate was issued September 9, 1904, upon the
Marcus Thompson made his application as a “ machinist,” and as such was accepted in class C, and his beneficiary was, under the policy, entitled to receive, in case of his death during membership, if such death was the result of sickness, the sum of $100; if caused “as the result, alone and independently of all other causes, of bodily injuries as defined,” the sum of $500. Bodily injury was defined, “ injury includes only the result of external, violent and accidental means, leaving on the body marks of contusion or wounds visible to the naked eye.” The policy also contained the same stipulation and condition, relative to injury received in any occupation or exposure while temporarily or otherwise engaged therein, as was contained in his application.
Marcus Thompson died August 9, 1909, while his certificate or policy was in full force, and his widow, the beneficiary, has brought suit for $500, the death benefit agreed to be paid in case of death by external, violent and accidental means.
At the time of the claimed injury, he had been employed as “boiler house foreman” at the plant of the Carrolton sugar factory since about July 1, 1909, under an agreement for the entire season or “campaign,” as the
On August 4, 1909, during such employment, while he was inside one of these boilers, cleaning it, and while the two steam fitters were working near him on the same or another boiler, at about quitting time, Mr. Thompson called out to them that he had hurt himself, and wanted them to help him out. They succeeded in getting him out with difficulty. He put his hand on his hip and started to walk away, limping considerably. He washed up and went home. When he arrived at home, he immediately went to bed, without eating. His wife went to a drug store, procured a bottle of liniment, and applied it. On his right side, between
Defendant upon the trial contended that the death of plaintiff’s decedent was caused by sickness, and not accident, and that at the time of his death he was engaged in employment not insurable under the classifications and occupations provided in the manual and under the policy.
Of the errors assigned, such as are material under this record will be considered. Upon the second contention above stated, the trial court held that the record showed that defendant had waived the defense that decedent, at the time of his claimed injury, was engaged in an occupation of different classification from that in which he was insured. The record sustains such determination. Defendant made a tender to plaintiff, with its plea and notices, and has kept such tender good by paying into court the sum of $100, and $16.30 costs. Under the provisions of the policy and the classifications of the manual then in use, there was no employment mentioned and classified which provided for payment of benefit for death as a result of sickness the sum of $100, which would not be payable under the conditions of the policy or certificate issued, and recoverable under its provisions, because such sum was payable only to those in that classification. Under the classification'in which defendant now, and in one part of the notice under the plea, claims the work de
Certain requests to charge were refused by the court, and errors are assigned upon such refusals. As these requests were all formulated upon the theory that the employment of decedent at the time he met his death was in issue, they need not be discussed, for the reason that, under the ruling of the trial court which we have just considered, that question was not in the case.
The errors assigned upon matters of evidence, relative to the employment of decedent as boiler house foreman and the duties, qualifications, etc., of such employment, are also eliminated by the same ruling, as are also errors assigned upon the exclusion of interrogations relative to classifications and occupations and benefits thereunder.
A motion for a directed verdict, which was denied, need not be considered, in so far as the reasons urged refer to
"While plaintiff was testifying as to where her husband had worked up to and including the day of his claimed injury, she was asked by her counsel:
“Q. Then what happened, if you know ?
“A. He came home hurt.
“Defendant’s Attorney: Wait a moment. I object to the statement that he came home hurt. That is a conclusion as to whether he was hurt or not; as to what his condition was, I have no objection.
“ The Court: The answer may stand. (Defendant excepted.) That night was Odd Fellows’ night and he said to me—
“Q. You can’t state what he said. What did he do that evening ?”
Error is assigned because the answer was not stricken out. It would have been proper to have stricken the objectionable answer out. The context, however, shows that this was not called out by her counsel, who at once stopped her, with a caution as to her answers. She later testified at length as to his condition and the visible evidence of injury on his body. Allowing the answer to stand was not prejudicial error.
Errors are assigned upon certain portions of the charge, which require attention. During the trial, when the questions of law herein referred to were under consideration and the trial judge announced his conclusions, he said:
“ That leaves one question to go to the jury, and that*38 is the question as to whether or not the death of Mr. Thompson resulted from sickness or from accident.”
The charges given to the jury, which are claimed to be erroneous, are as follows:
“(1) Now the burden of proof in this case is upon the plaintiff, and the plaintiff must show, before the plaintiff can recover, by the preponderance of proof — that is, by the greater weight of the testimony — that the plaintiff’s death was caused, alone and independently of other causes, by a bodily injury, which bodily injury must have been by accidental means, leaving upon the body marks of contusion, or wounds, visible to the naked eye. That states the ultimate facts which the plaintiff must prove by the greater weight of testimony, before the plaintiff can recover.
“(2) You will observe, gentlemen of the jury, that this involves proofs of two points: First, that the death was the result of accidental injuries, and, second, that these accidental injuries left upon the body marks of contusion, or wounds, visible to the eye. Both of these points are to be proved, before the plaintiff can recover, and you will have that thought in mind in respect to all I say hereafter in giving the charge.
"(3) The visible marks on the body required by the policy need not become visible immediately upon the happening of the accident, in order to entitle plaintiff to recover; but it is sufficient if they appear in some reasonable time thereafter. The mark visible to the eye on the body required by the policy need not be a bruise, contusion, laceration, or broken limb, but may be any visible indication of an internal injury which may appear within a reasonable time after the injury is received, such, for instance, as discoloration of the part of the body affected.
“(4) I think perhaps I should explain that and make it a little more clear. The defendant’s claim was that the cause of death was illness, and has made a tender into court which has been put in evidence, and if the death resulted from illness then the plaintiff is entitled to the money, and will get it without further ceremony, and that leaves then the issue for you to try, which has been submitted to you, the issue of whether or not death was or was not caused by the accident.”
We find nothing objectionable in the first and second
In considering the objections to the third paragraph, urged to be erroneous in connection with the first and second, we find that the court charged correctly upon the burden of proof, and followed by using the exact words of the policy, with a statement of what was required to be proven to warrant a recovery by plaintiff.
The part of the third portion claimed to be erroneous is—
“ The mark visible to the eye on the body required by the policy need not be a bruise, contusion, laceration, or broken limb, but may be any visible indication of an internal injury, which may appear within a reasonable time after the injury is received, such, for instance, as discoloration of the part of the body affected.”
This was immediately followed by the following sentence, which must be read in connection with it:
“In legal medicine the word ‘wounds’ means injuries of every description that affect either the hard or soft parts of the body, and it comprehends bruises, contusions, fractures, luxations, etc. In law the word means any lesion of the body.”
The policy sued upon reads:
“It is understood and agreed * * * that injury includes only the result of external violent and accidental means leaving on the body marks of contusions or wounds visible to the naked eye.”
The policy distinguishes between contusions and wounds, and includes both. The definition of “ wounds ” given by the court was a correct one. It is authorized by 4 Cooley’s Briefs on the Law of Insurance, p. 3185; Black’s Law Dictionary, p. 1245; Bouvier’s Law Dictionary, p. 1247; State v. Owen, 5 N. C. 452 (4 Am. Dec. 571). The jury has been charged explicitly, in substance, that it must appear that the death was caused, alone and independent of other causes, by a bodily injury sustained
The defendant claims error was committed in the fourth paragraph excepted to, in that it did not correctly state its claim. The record shows that defendant did make such a claim, both before and during the trial, and that defendant did not, as is claimed in its brief, make a different claim as soon as it learned the facts. No error was committed.
Error is assigned because the court permitted the affidavit of the attending physician, which had been furnished on request for further proofs of death, to be received in evidence when offered by plaintiff. The contention on the part of defendant was that the proofs of loss were insufficient, and this affidavit was offered to meet that claim. It was received, but not read to the jury. The policy required satisfactory proofs of death. Further proof was requested, and this affidavit was furnished. No further claim in that regard was made until after suit brought. Defendant offered the proofs of loss, except this affidavit, on its own part. It was held by the court that the proofs were sufficient. It was not error on the part of the court to receive and consider this affidavit.
The remaining error assigned relates to the instruction of the court as to the verdict which should be found in case plaintiff recovered. The court charged upon this matter:
“ Now your verdict in this case will be either $520.84, or it will be no cause of action.”
And further:
“ If you should find that it was the result of sickness, and not as the result of an accident, then your verdict*41 will be no cause of action; that is to say, the plaintiff’s recovery, if any, is #520.84.”
Defendant had made a tender into court of #100 and costs, claiming that Mr. Thompson’s death was caused by sickness, and not accidental bodily injury. Under the evidence, the court was required to submit this question to the jury. As we understand it, defendant’s contention is that the court should have in some way, not pointed out in its brief, credited or allowed it the benefit of the tender. Whether something might have been said in the charge, or some action might have been taken by the court afterward, it is certain that plaintiff could not have accepted the tender without abandoning her case. The payment into court was voluntary under the statute. If the tender had been found sufficient, the plaintiff could not recover costs and interest from the time of tender, but would have been liable to defendant for such costs. Sections 10405, 10406, 3 Comp. Laws; Snyder v. Quarton, 47 Mich. 211 (10 N. W. 204). The contrary occurred. The jury found the full amount claimed for plaintiff. Judgment was entered upon the verdict as a matter of course. Counsel for defendant sat by and did not call the attention of the court to the matter. It was in the power of the court, at the time, to have credited the amount tendered upon the judgment, and we presume he would have done so, if asked. To omit the matter from his charge was not error, nor will this court reverse the case because the court did not see that due credit was given upon the judgment. It is a matter within the power of this court to rectify without injury or prejudice to defendant. Upon turning over to plaintiff, or her attorney, the amount of #116.30 by the clerk of the circuit court and receiving receipt therefor, he will enter as a part payment and satisfaction upon such judgment the sum of $100, to apply on damages, and $16.30, to apply on costs of suit.
The judgment of the circuit court is affirmed.