N. A. Life & Accident Ins. Co. v. Burroughs

• Decision Date: 09 October 1871
• Citation: 69 Pa. 43
• Parties: The North American Life and Accident Insurance Co. <I>versus</I> Burroughs.
• Court: Pennsylvania Supreme Court

Page 43

69 Pa. 43

The North American Life and Accident Insurance Co. versus Burroughs.

Supreme Court of Pennsylvania.

February 24, 1871.

October 9, 1871.

February 24th 1871.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., at Nisi Prius

Certificate from Nisi Prius. No. 221, to January Term 1871.

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S. Dickson (with whom was J. C. Bullitt), for plaintiffs in error.—The question of waiver is for the jury, and not the court: Insurance Co. v. Updegraff, 7 Wright 350; Insurance Co. v. Schollenberger, 8 Id, 259.

The furnishing of preliminary proofs, according to the conditions of the policy, is a condition precedent to the right of recovery: Angell on Insurance, §§ 224, 225, 226 Klein v. Insurance Co., 1 Harris 247; Trask v. Insurance Co., 5 Casey 198; Insurance Co. v. Stauffer, 9 Id. 397.

The waiver must be intentional, and have misled the insured to rely upon it to his prejudice: Desilver v. Insurance Co., 2 Wright 130; Insurance Co. v. Schreffler, 6 Id. 188.

As to the change of occupation. The statements on the policy are to be taken as warranties: Phillips on Ins., c. ix. 892; Angell on Ins. § 140; Fire Association v. Williamson, 2 Casey 196; Miles v. Insurance Co., 3 Gray 580; Anderson v. Fitzgerald 24 Eng. L. & Eq. 1; Hartman v. Keystone Insurance Co., 9 Harris 466; Peacock v. Insurance Co., 20 N. Y. 293; Jennings v. Insurance Co., 2 Denio 75; Burritt v. Insurance Co., 5 Hill 188; Wall v. Insurance Co., 14 Barb. 383. The condition against change of avocation being of the nature of a warranty, is to be literally complied with: Angell on Insurance, § 140, et seq. Whether the thing warranted be material or not, and whether the loss happen by reason of a breach of the warranty, or did not, is immaterial: 3 Kent Com. 424 (312^*); Elliot v. Wilson, 7 Bro. P. C. 459; Phillips on Insurance, chap. 9, 866, and cases referred to, Id. 868; Bunyan on Life Assurance 68; Vyse v. Wakefield, 6 M. & W. 442; Hathaway v. Ins. Co., 11 Cush. 448 J. H. Sloan (with whom was J. Goforth), for defendant in error, as to change of occupation cited: The West Branch Ins. Co. v. Helfenstein, 4 Wright 289; McAnally v. Somerset M. Ins. Co., 17 Leg. Int., 244; Perrins v. Marine & General Travellers' Ins. Soc., 6 Jur. N. S. 627.

The opinion of the court was delivered, October 9th 1871, by WILLIAMS, J.

In this case the jury have found, on sufficient evidence, that while the insured was pitching hay, the handle of the pitchfork slipped through his hands and struck him on the bowels, inflicting an injury, which produced peritoneal inflammation, in consequence of which he died; that the blow which he received from the fork-handle was an accident and the cause of his death. The case, therefore, comes directly within the terms of the policy declared on. But it is objected that the plaintiff was not entitled to recover, because no sufficient preliminary proof was furnished to the company that the death of the insured was caused solely by an accidental injury; that the injury, described in the preliminary proofs of loss furnished by the plaintiff, is not an accidental injury within the meaning of the policy, and is not covered by its provisions. The policy provides that no payment shall be due, and no claim be made under it, on account of the accidental loss of life of the assured, unless notice of the injury and of the death shall be given to the company within thirty days after the happening of either, and sufficient proof furnished said company of such injury, and that such death was caused solely by such accidental injury, and ensued within three months from the happening thereof. Substantially the same provision is also contained in the fourth condition of the policy: In case of injury producing death of the assured, happening as aforesaid by accident, within the meaning of this policy, the party for whose benefit the insurance is made shall within thirty days thereafter give notice of the same in writing, with sufficient proof of such injury and of death.

Notice was given to the company on the 12th of August 1867, within the time limited by the policy, that the assured came to his death by accident on the 14th of July, by an injury received in the bowels, while working in a hay-field, producing peritoneal inflammation, which resulted fatally. And in proof thereof, the affidavits of the plaintiff and attending physician were subsequently furnished to the company. No objection was made to the affidavits, on the ground that they were not furnished in time, and, under the evidence, no such objection could have been properly made. The only objection then and now made to the affidavits, is that they do not show that the assured "died as the result of any injury received by accident." But if the facts stated in the affidavits are true, why do they not make out a primâ facie case of death resulting from an injury occasioned by accident? The plaintiff's affidavit expressly avers "that her late husband died in consequence of an accident which happened, on the 9th of July 1867, on this wise: said deceased, on the day aforesaid, was assisting in unloading hay in Hopewell township, New Jersey, at his grandfather's, where he had gone on a visit, when he accidentally strained himself. He immediately complained of severe pain, and a physician was summoned. All was done for his relief and recovery that could be, without success. He lingered till the fourteenth of said month, when he died, and the said accident was the direct cause of his death." And the attending physician, after stating in his affidavit that he personally knew the assured, says that he "knows that he was killed by accident on the 14th day of July last; and further, that the accident was occasioned by exertions made in assisting in hauling in hay, which injured the abdominal muscles, and produced peritoneal inflammation and all its concomitant symptoms, which resulted in his death on the 14th of July last." If the facts set forth in these affidavits be true, and they are perfectly consistent and reconcilable, do they not show with reasonable certainty that the death of the assured was caused by an accident? Taking both affidavits together they substantially allege that the assured, while assisting in hauling in, and unloading hay, accidentally strained himself, injuring his abdominal muscles and producing peritoneal inflammation, which resulted in his death; and, that the said accident was the direct cause of his death; and if so, can there be any doubt as to the...