Aaberg v. Minnesota Commercial Men's Ass'n, 24209.
| Decision Date | 09 January 1925 |
| Docket Number | No. 24209.,24209. |
| Citation | 161 Minn. 384,201 N.W. 626 |
| Parties | AABERG v. MINNESOTA COMMERCIAL MEN'S ASS'N. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; W. C. Leary, Judge.
Action by Flora E. Aaberg, as administratrix of Albert Aaberg, against the Minnesota Commercial Men's Association. Verdict for plaintiff, and from order denying judgment non obstante, refusing to reduce the verdict or grant a new trial, defendant appeals. Affirmed.
A. V. Rieke and Lancaster, Simpson, Junell & Dorsey, all of Minneapolis, for appellant.
Odell & Fahey, of Chaska, for respondent.
This is the third appearance of the case here. The former opinions are found in 143 Minn. 354, 173 N. W. 708, and 152 Minn. 478, 189 N. W. 434, reference to which will give the facts in more detail than deemed necessary for a decision on the present appeal.
The action is to recover upon an accident insurance policy issued by defendant to Albert Aaberg, now deceased. His widow, as administratrix of his estate, has been substituted as plaintiff. This policy was issued February 1, 1915, upon Aaberg's written application made two days before. He met with an accident on April 15, 1915, from which he suffered a total disability for 54 weeks. There was a verdict for the full amount of the loss for that period. The appeal is from the order denying judgment non obstante, refusing to reduce the verdict, or grant a new trial.
With commendable skill counsel for appellant have grouped the many errors assigned under four heads. Two of these are technical, and, as we view them, of little merit and will be disposed of briefly.
1. It is contended that defendant should have judgment because plaintiff is not the real party in interest, her cause of action having been assigned. It is enough to say that evidence of an assignment was improperly admitted. Such defense was not pleaded. The terms and conditions of the assignment were not proven. It does not appear that plaintiff parted with all interest in the subject of the action, and even if so, she might continue the action for the benefit of the assignee. Dunnell, Minn. Dig. § 7330. The court did not abuse judicial discretion in refusing defendant leave to amend by alleging that plaintiff was not the real party in interest.
2. The by-laws, a part of the contract, required the insured to give written notice of the injury to the secretary of defendant within 20 days after the accident. This notice was duly given. It further provides that no claim for indemnity shall be valid unless the member etc. No further proofs or statements were demanded during the continuance of disability, nor were full reports by the attending physician furnished every 30 days or at all, except just after the accident and when the disability ceased. Aaberg was furnished with blanks by defendant for final proofs, and these were properly made out, verified, and presented to defendant. Appellant contends the provisions quoted should be construed to mean a forfeiture of benefits unless, during the continuance of the disability, the attending physician's report be furnished every 30 days; whereas, respondent claims that such reports are only to be furnished if requested by the association, but that they cannot be requested oftener than every 30 days, while other proofs and statements from the assured may be demanded as often as desired and must be furnished within ten days after demand. The by-law is ambiguous and should be construed so as not needlessly to burden the assured and risk forfeiture of the benefits which may have accrued under the contract of insurance. In the last sentence quoted the causes of forfeiture do not include failure to furnish "reports" of attending physician. Moreover, the testimony of defendant's secretary indicates a practical construction of the provision in question conforming to respondent's contention. The record discloses also that final proofs of the disability were received and accepted without objection that any preceding reports from the attending physician were lacking; and denial of liability was never placed on that ground until counsel moved for a directed verdict. We do not think the by-law should be so construed that a forfeiture of benefits results, if between the first and last reports from the attending physician there are not furnished also intermediate reports every 30 days, unless the insurer requests the same.
Aaberg's application for insurance contained these questions and answers:
.
It is claimed the evidence conclusively established the falsity of the answers, and that being so, as a matter of law, it materially affected the acceptance of the risk and the hazard assumed by the insurer. Question No. 41 ought not to be construed as referring to the use of intoxicants, for question No. 43 is specifically directed to that subject. The only evidence adduced by defendant to prove the falsity of the answer to question No. 43 is the testimony of Mr. Murray, the owner of the Murray Institute, an institution for the cure of the liquor habit. He testified that he had administered the cure to Aaberg three times, once about ten months before the application to defendant was made, once in November, 1914, and once in March, 1915. Aaberg denied that the last two visits were to take a cure; but, if we accept the testimony of Mr. Murray at its face value, it shows that he was well acquainted with Mr. Aaberg, met him at other places than his institute, yet there is not a word that he ever saw him under the influence of liquor except at the three times he came to the institute, as he says, for treatment. He also testified that 10 to 20 days is required for a cure; that a patient once received is not discharged before a cure is effected. The most then that can be made from this evidence is that a cure is not always permanent. Granted that...
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