McFarland v. United States Mut. Acc. Ass'n.

• Decision Date: 09 July 1894
• Citation: 27 S.W. 436
• Parties: McFARLAND v. UNITED STATES MUT. ACC. ASS'N OF CITY OF NEW YORK.
• Court: Missouri Supreme Court

27 S.W. 436

McFARLAND v. UNITED STATES MUT. ACC. ASS'N OF CITY OF NEW YORK.

Supreme Court of Missouri, Division No. 1.

July 9, 1894.

ACCIDENT INSURANCE — NOTICE OF INJURY.

1. Under an accident policy which provides that, in case of an injury totally disabling the insured from carrying on his work, notice of the accident shall immediately be given the company (giving full particulars), and, in case "such" injuries cause the death of the insured, notice shall be given "in like manner," it is not necessary, where the injuries caused death, but did not totally disable the insured, at the time, from working, to give notice of the accident at the time it happened, as the policy fails to provide for any notice in such case.

2. Nor is it necessary to give the particulars of the accident, etc., as the words "in like manner" qualify the method in which the notice shall be sent.

3. Where an accident policy, after providing for notice of injuries causing total disability to be given, provides that, in case "such" injuries cause death, then affirmative proof of the same shall be made within six months after the accident, proof of death from injuries which did not cause total disability need not be given until six months after the insured's death.

4. Under an accident policy requiring immediate notice of the death of the insured to be given, and providing that the same shall be given by letter, notice given within 10 days after the death is sufficient, as the word "immediate" will be construed "reasonable."

5. Where the only dispute as to the facts showing whether reasonable notice was given to an insurance company of the insured's death, as required by the policy, is whether a letter containing such notice was sent, it is a question for the jury whether the notice was sent, and for the court whether it was reasonable.

6. The fact that a letter was mailed, duly stamped and addressed, is evidence that the person to whom it was sent received it.

7. Under a statute requiring the policy in assessment insurance companies to state the exact amount which the company is to pay on the happening of the contingency (Rev. St. 1889, § 5862), it is not necessary, in an action on such a policy, for plaintiff to show, in order to recover the maximum amount of the policy, that such amount would be realized by an assessment of the members.

8. The fact that a witness (resident of another county) has already testified during the trial does not render his deposition inadmissible, when his absence at the time the deposition is offered in evidence is without the consent or collusion of the party offering the deposition.

9. Where the statute provides that only one new trial shall be granted either party, except where the triors of fact shall have erred in a matter of law, or the jury has been guilty of misbehavior, a second new trial cannot be granted on the ground that the evidence is insufficient to support the verdict.

Appeal from circuit court, Andrew county; C. A. Anthony, Judge.

Action by Jennie McFarland against the United States Mutual Accident Association of the City of New York. There was a judgment for plaintiff, and defendant appeals. Affirmed.

The defendant is an accident insurance company, doing business on the assessment plan, and in June, 1886, issued and delivered to Thomas McFarland, plaintiff's husband, a beneficiary certificate, wherein, for a sufficient consideration, it promised to pay to plaintiff $3,000 within 60 days after proof that Thomas McFarland shall have sustained bodily injuries, effected through external, violent, and accidental means, and such injuries shall have occasioned death within 90 days after the happening thereof. The said certificate contained a further agreement on the part of defendant, in the following words: "Or if said member [referring to Thomas McFarland, plaintiff's husband] shall sustain bodily injuries by means as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he receives membership, then, upon satisfactory proof of such injuries, he shall be indemnified against loss of time thereby, in a sum not to exceed fifteen dollars per week for such period of continuous and total disability as shall immediately follow the accident and injuries as aforesaid; not exceeding, however, twenty-six weeks from the time of the happening of such accident." The certificate also contains the following conditions: "(2) In the event of any accidental injury for which claim may be made under this certificate, immediate notice shall be given in writing, addressed to the secretary of this association at New York, stating the full name, occupation, and address of the member, with full particulars of the accident and injury, and also, in case of death resulting from such injury, immediate notice shall be given in like manner, and failure to give such immediate written notices shall invalidate all claims under this certificate; and unless direct and affirmative proof of the same, and of the death or duration of total disability, shall be furnished to the association within six months after the happening of such accident, then all claims accruing under this certificate shall be waived, and forfeited to the association." "(4) No claims shall be payable under this certificate unless any medical adviser of the association shall be allowed to examine the person or body of the member, in respect to any alleged injury or cause of death, when and so often as may be required on behalf of this association." "(6) All the provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this certificate, are conditions precedent to the issuing of this certificate; and no waiver shall be claimed by reason of the act or acts of any agent, unless such act or waiver shall be specially authorized in writing over the signature of the secretary of this association." The petition declares upon the certificate as the contract between the parties, and, among other things, charges that Thomas McFarland's death was occasioned solely by injuries effected through external, violent, and accidental means, and alleges that plaintiff gave immediate notice of McFarland's death, and furnished proof thereof within six months after the happening of the accident, and that all the conditions of the certificate were fully complied with by her. The answer denies that McFarland's death was caused by accidental means, or by injuries, and charges that it was occasioned by causes against which defendant did not insure him, and as a further defense, among other things, pleads the second, fourth, and sixth conditions of the certificate, and charges that no notice whatever of the accident and injuries to Thomas McFarland was given to the defendant, as required by said second condition, that no notice of the death of said Thomas McFarland was given to defendant, and that proof of death was not furnished within six months from the happening of the accident, by reason of which plaintiff's claim, if she ever had any (which defendant expressly denies), is waived and forfeited. The reply alleges that plaintiff did give to defendant, immediately after the death of Thomas McFarland, both notice and direct and affirmative proof of his death, and that defendant has waived all claim and right to any further or additional or any notice or proof that he died by the means and in the manner alleged in the petition. This is, in substance, the statement of the appellant, and fairly presents the issues. The evidence tended to prove that in the early part of May, 1888, Thomas McFarland, the beneficiary, fell from his wagon, by which he sustained injuries to his private parts, — particularly, his testicles. As to the severity of these injuries, their immediate effect upon McFarland, and the time of their continuance, there was great and irreconcilable conflict in the evidence, but that he continued to work at his usual avocation up to the day before his death the evidence leaves no doubt. The evidence, however, tended to prove that he suffered continually from the injuries until the day of his death, which occurred July 12, 1888. On the morning of the 12th of July he was taken violently ill, followed during the day with vomiting and purging, which continued until about 11 o'clock that night, when he died. The evidence of physicians tended to prove that his sickness was the result of inflammation caused by the injuries. From the date of the accident until the death, no notice was given the association of the injury, though an assessment was paid by McFarland about the 1st of July. Plaintiff testified that a few days after the death of her husband she wrote a letter addressed and directed to the United States Mutual Accident Association, 320-322 Broadway, New York. This letter she stamped, and deposited in the post office at St. Joseph. In this letter she wrote: "My husband is dead and buried. He has died from an accident caused by a fall. If you wish any further information, write and let me know, and I will inform you as far as I know." She also testified that in this letter she informed the association that her husband was a member, holding certificate No. 6,682. Plaintiff testified further that, receiving no answer to this letter, she wrote again, in a short time, to like effect. She received no reply to this. Afterwards, in October, she wrote a third letter to the same effect. To this letter, she said, she received a reply written in red ink thereon, and both the letter she had written, and the envelope in which it was inclosed, were returned to her. The letter had been lost, but the envelope had been preserved. In regard to the reply written on this letter, plaintiff testified: "I don't remember just word for word what they said, but, from what I can remember and gather from it, ...