Badenfeld v. Massachusetts Mut. Acc. Ass'n
| Decision Date | 10 June 1891 |
| Citation | 154 Mass. 77,27 N.E. 769 |
| Parties | BADENFELD v. MASSACHUSETTS MUT. ACC. ASS'N. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from superior court, Suffolk county ROBERT C. PITMAN, Judge.
Insurance 2605
217 ----
217XX Coverage--Health and Accident Insurance
217XX(D) Accident Insurance
217k2602 Evidence
217k2605 Burden of Proof.
(Formerly 217k467.1(1), 217k646(6))
Provisos in an accident insurance policy that "members are required to use all diligence for personal safety and protection," and that "no claim shall be made under this certificate where death or injury may have happened in consequence * * * of any voluntary exposure to unnecessary danger," constitute matters of defense, the burden of proving which is on defendant.
217 ----
217XXXI Civil Practice and Procedure
217k3544 Conditions Precedent
217k3547 Submission to Appraisal or Arbitration.
(Formerly 217k612(3))
A proviso in an accident insurance certificate that no suit should be brought to recover any sum therein, unless the same had first been referred to arbitration, is no bar to an action before arbitration; the insurer's obligation being not to pay the award but the sum named in the policy, and the proviso not making the award a condition precedent to the promise to pay, but only a mode of enforcing that promise.
217 ----
217XXXI Civil Practice and Procedure
217k3579 Instructions.
(Formerly 217k669(11))
Insured holding an accident insurance policy, was found on a railroad track in a situation which showed that he had been killed by a certain train. There was evidence that before the arrival of that train he was waiting in the train house for a train that passed 15 minutes later on a track west of that on which he was found. There was no evidence of the cause of his fall on the track, or of his acts proximate thereto. There was evidence that the platform east of the track on which he was run over was for trainmen only, and that the place intended for and generally used by passengers taking or leaving cars on that track was between said track and the one to the west. Held, that the court properly refused to instruct that if deceased, while on the east platform, or while getting off a car in motion, fell on the track, there could be no recovery of the insurance.
A.A Ranney and John Woodbury, for plaintiff.
Gaston & Whitney, for defendant.
The promise of the defendant was to pay a certain sum in the event of the death of the plaintiff's intestate, occasioned by "bodily injuries effected through external, violent, and accidental means." There are nine provisos in the certificate, the last of which is that "no suit or proceeding at law or in equity shall be brought to recover any sum herein, unless the same has been first referred to the arbitration of just and competent men." It was admitted that there had been no reference to arbitration of the plaintiff's claim, and that the plaintiff never requested such arbitration. The first exception is to the refusal of the court to rule that, for that reason, the action could not be maintained. The promise is not to pay the award, but to pay the sum named, and the proviso does not make the award a condition precedent to the promise to pay, but a mode of enforcing that promise. It is well settled that such an agreement is no bar to an action on the promise. Reed v. Insurance Co., 138 Mass. 572, and cases cited.
The certificate also contains the proviso that "members are required to use all due diligence for personal safety and protection," and that "no claim shall be made under this certificate where death or injury may have happened in consequence *** of any voluntary exposure to unnecessary danger." These provisos constitute matter of defense, and the burden of proving them is upon the defendant. Freeman v. Insurance Co., 144 Mass. 572, 12 N.E. 372.
The other exceptions are to the refusals of the court to rule upon the undisputed evidence in the case, and upon the hypothetical findings of the jury upon the evidence, that the defense of want of due diligence or of voluntary exposure to unnecessary danger by the deceased was made out, and to instruct the jury to find a verdict for the defendant. After the 10 o'clock train left, the dead body of the plaintiff's intestate was found on the track where the train had stood in such a situation and condition as showed that he had been run over by the train and instantly killed. Track No. 8 was the easterly track, and was near the easterly wall of the train-house. A platform extended from the wall towards the track so far that a car upon the track...
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