190 P. 993 | Mont. | 1920
delivered the opinion of the court.
This action was brought by plaintiff on an accident policy carried by her son, Ora Tuttle. The ease was' tried to the court sitting without a jury, and resulted in a judgment in favor of the plaintiff for the amount of the policy.
The undisputed facts are as follows: 'In 1908 Ora Tuttle was insured by defendant company “against the effects of bodily injuries sustained during the term of this policy and caused solely by external, violent and accidental means. «= * * And if death shall result from such injuries within ninety days, independent of all other causes, the company will
On June 19, 1911, Ike E. O. Pace, Esq., an attorney at Whitehall, notified the company by letter of the disappearance of Tuttle and of the search made for his remains, and closed with the statement: “There is no doubt, however, that the young man is dead, and probably was either accidentally shot or received some serious fall, or was attacked by some wild animal which accident resulted in his death.”
On October 20, 1913, plaintiff notified the local agent in writing of the finding of the body, and requested instruction as to what was required of her as to “proof and statement.” The letter was forwarded to and answered by the head office, to the effect that the last policy carried by Ora Tuttle was in 1910, and that “the conditions of it are such that it would appear that no claim exists thereunder.” The plaintiff replied, reciting her conversation in 1910 with the local agent, and stating that she would be glad to hear further from the company. Thereafter, on January 30, 1914, J. L. Wines, Esq., an attorney, took the matter up with the company, and was advised in writing that “It appears impossible to show the manner of such death. Such being the fact, it is impossible to determine whether the case falls within the terms of the policy, said policy being one of limited liability. Furthermore, it appears from an examination of the files that the provisions of the contract in regard to giving notice and submitting proofs have not been complied with. You will, of course; understand that the action of the company in writing you as
The amended complaint alleges that “Ora Tuttle came to his death by bodily injuries sustained, caused by external, violent, and accidental means, and resulting in his death and disability, independent of all other causes.” It then recites the facts, substantially as hereinbefore stated. It then alleges the conversation with the local agent and the subsequent writing of the letter referred to above, with the contents, but continuing, “and asking him if he would look after the matter as he said he would.” This latter request does not, however, appear in the letter which was introduced in evidence. The complaint then alleges the notice of June 19, 1911, and, after stating the contents, avers that plaintiff “At the same time requested that proper blanks be forwarded to her to make the necessary written affirmative proof of death.” The letter, also introduced in evidence, does not contain the request quoted above from the complaint.
The complaint further alleges that notice of death was given and liability denied within the 120 days as required by the policy, “after ascertaining the fact of death”; that defendant failed, neglected and refused to furnish the blanks, and plaintiff was unable, therefore, to furnish the proof required, and was thereby excused from furnishing other proof than that submitted, and that defendant waived any advantage that it might have claimed by reason of the failure of plaintiff.
The defendant demurred to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action, pointing out the failure to state in what manner the injuries were sustained, or that they were caused by external, violent and accidental means; that the complaint shows a failure to give the required notices, and does not state facts sufficient to constitute a waiver. The demurrer was overruled, and defendant answered, and thereafter the cause was tried to the court sitting without a jury. The plaintiff having rested, defendant moved the court to find the issues in
The specifications of error herein are that the court erred in (1) overruling the demurrer to the amended complaint; (2) refusing to grant the motion to find the issues for defend-' ant; (3) finding that Ora Tuttle came to his death by external, violent and accidental means on or about November 22, 1910; and (4) finding as a conclusion of law that plaintiff was entitled to judgment.
1. In overruling the demurrer the court evidently considered the general allegations of the . complaint sufficient, to be thereafter aided by proof of specific facts, and disregarded, the recitation of evidence as surplusage. The case was thereafter tried, and all the facts, concerning the death of Tuttle, that could possibly be developed were brought, out. No good purpose could now be served by a new trial, and we are of the opinion that the matter should be disposed ■ of on its merits. We will therefore pass, without deciding, the question of the correctness of the court’s ruling on the demurrer.
2. The motion to find the issues in favor of the defendant is based on the ground of alleged insufficiency of the evidence to establish (a) that death resulted from injuries sustained,
The policy here under consideration contains the following provisions:
“6. The claimant must deliver to the company at its home office in Los Angeles, California, immediáte written notice of any accident, with full particulars and name and address of insured, and deliver to the company at its said home office written affirmative proof of such injuries or death and whether said injuries or death were caused by external, violent and accidental means within the terms of this policy; and so furnish such proof as to death # * * within one hundred and twenty days from time of accident; or no claim shall arise or be valid.”
“9. No alteration or waiver of the conditions or provisions of this policy or said application shall be valid unless in writing at the company’s home office and signed by the president or vice president and also the secretary or assistant secretary; nor shall notice to or (knowledge of any person of anything not written in said application be held to effect a waiver or estoppel upon the company, or affect the provisions of this contract. ’ ’
While, in this state, “time is never considered as of the
In the absence of proof that the facts related were
The giving of the notice of the .accident, and the forwarding of affirmative proof of death, are two separate and distinct obligations. Under the circumstances of this .case, the latter
In the ease of Foster v. Fidelity & Casualty Co., reported in 99 Wis. 447, 40 L. R. A. 833, 75 N. W. 69, it was held that where the beneficiary satisfied herself after investigation that her son’s death was accidental, but did not give notiee until twenty-nine days thereafter, she did not bring herself within the requirement of “immediate notice.”
There is a class of cases which holds that the time within which notiee must be given does not begin to run until the discovery of the facts upon which the claim is based. (Trippe v. Provident Fund Society, 140 N. Y. 23, 37 Am. St. Rep. 529, 22 L. R. A. 432, 35 N. E. 316; Munz v. Standard L. A. Ins. Co., 26 Utah, 69, 99 Am. St. Rep. 830, 62 L. R. A. 485, 72 Pac. 182; Jennings v. Brotherhood Acc. Co., 44 Colo. 68, 13 Am. St. Rep. 109, 18 L. R. A. (n. s.) 109, 96 Pac. 982. But these cases are of little assistance here; for leaving out the question of death, with which this preliminary notice is not concerned, the facts relating to the accident, if any, were known to plaintiff at the time she was notified of the loss of her son in a storm.
The plaintiff contends that she was not required to give notiee until after the establishment of the fact that the assured was dead. If this were true, no such notice as is required by the terms of the contract was ever given, as it would exclude the letter of June 19, 1911, which contained the only written notice furnished the company at any time, attempting a recital of the facts. There is no evidence of a compliance with the requirement of written affirmative proof of death; the letter of October 20, 1913, written to the local agent, but forwarded to the home office, goes no further than 1;o state that the “remains of my son Ora Tuttle have been
As to waiver, the insurer and the insured mutually agreed
Three letters, admittedly coming from the home office, were
3. The first ground mentioned in the motion for findings in favor of the defendant, and the third and fourth assignments of error, are based on the lack of evidence to establish death by external, violent and accidental means.
The evidence, heretofore quoted, establishes' the fact of death, but the manner in which the insured met his death is
In the case of Laessig v. Travelers’ Prot. Assn., supra, the court said: “The proof of accidental death is the essential prerequisite and condition precedent to the right to recover on an accident insurance policy. This is the distinguishing feature between accident policies and ordinary life policies. In the latter, to make out a prima facie case it is only necessary for the plaintiff to show the contract after the death, * * * whereas, in the former, the condition precedent to a recovery is not simply the natural death, but the death from accident. Hence in suits upon accident policies the burden of proof is upon the plaintiff (subject to the limitation that it is not presumed as a matter of law that the deceased took his own life or was murdered) to show that the death was caused by external violence and by accidental means. This is exactly what the policy or contract itself provides. And this is the rule laid down by Mr. Justice Harlan, in the supreme court of the United States, in Travelers’ Ins. Co. v. McConkey, 127 U. S.
There is a clear distinction between accidental death and death by accidental means; the latter only is covered by the policy. Thus in Smith v. Travelers’ Ins. Co., supra, we find the rule stated as follows: “It is not sufficient that the death or the illness that caused the death may have been an accidental result of the external cause, but that cause itself must have been, not only external, and violent, but also accidental [citing a long list of authorities]. The word ‘accident,’ in accident policies, means an event which takes place without one’s foresight or expectation. A result, though unexpected, is not an accident; the means or cause must be accidental. Death
In Sinclair v. Maritime Passengers’ Assur. Co., 3 El. & El. 478, 121 Eng. Reprint, 521, the court says: “We cannot think that disease produced by the action of a known cause can be considered as accidental. Thus disease or death, engendered by exposure to heat, cold, damp, the vicissitudes of climatic or atmospheric influences, cannot, we think, properly be said to be accidental unless brought about by circumstances which may give it the character of accident.”
Respondent cites a number of cases in support of the contention that the circumstances in this case supply this element. But in each of these cases there is shown the element of accident. For example, in Travelers’ Assn. v. Insurance Co., 10
In Manufacturers’ Acc. Indemnity Co. v. Dorgan, 58 Fed. 945, 22 L. R. A. 620, 7 C. C. A. 581, it was held that a drowning, caused by a temporary trouble to which the insured was not subject, but which was entirely unusual and uncommon, whereby he fell into the water, was “accidental.”
In United States Mut. Acc. Assn. v. Hubbell, 56 Ohio St. 516, 40 L. R. A. 453, 47 N. E. 544, drowning while crossing a ford, which insured had safely crossed on previous occasions, and which was entered only with the apprehension of getting wet, was held to be “accidental.”
It will be noted, however, that in each of the cases the
The insured, having contracted that the company should be liable only in ease of death from injuries caused solely' by external, violent and accidental means, the burden of proving that the case is within the terms of the policy rested upon
While we are mindful of the rule that this court will not
The judgment of the district court of Jefferson county is therefore reversed, and the cause remanded to the trial court, with the direction to enter judgment in favor of the defendant.
Reversed and remanded.