Baba v. Mut. Ben. Health & Acc. Ass'n

• Decision Date: 08 June 1937
• Docket Number: No. 23.,23.
• Citation: 280 Mich. 531,273 N.W. 795
• Court: Michigan Supreme Court
• Parties: BABA v. MUTUAL BEN. HEALTH & ACC. ASS'N.

280 Mich. 531

273 N.W. 795

BABA

v.MUTUAL BEN. HEALTH & ACC. ASS'N.

No. 23.

Supreme Court of Michigan.

June 8, 1937.

Action by Pauline Baba against the Mutual Benefit Health & Accident Association. From a judgment for the defendant notwithstanding the verdict, plaintiff appeals.

Affirmed.Appeal from Circuit Court, Oakland County; George B. hartrick, judge.

Argued before the Entire Bench.

Sol Blumrosen and Chester Schwartz, both of Detroit, for appellant.

Lightner, Crawford, Sweeny, Dodd & Toohy, of Detroit (Clifford M. Toohy and George D. Haller, both of Detroit, of counsel), for appellee.

CHANDLER, Justice.

In a suit on a policy of insurance defendant had judgment non obstante veredicto. Plaintiff appeals.

Plaintiff is the widow of Nick Baba, deceased, and is also the beneficiary under an insurance policy issued to said deceased insuring deceased ‘against loss of life * * *, resulting directly and independently of all other causes, from bodily injuries sustained during any term of this policy, through purely accidental means.’ The policy contained the usual standard provisions, those pertinent to a determination of this cause being as follows:

‘4. * * * In event of accidental death immediate notice thereof must be given to the Association.’

‘5. Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the Association at Omaha, Nebraska, or to any authorized agent of the Association, shall be deemed to be notice to the Association. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.’

‘6. The Association upon receipt of such notice, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made.’

‘7. Affirmative proof of loss must be furnished to the Association at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the Association is liable, and in case of claim for any other loss, within ninety days after the date of such loss.’

On June 4, 1934, the deceased, accompanied by his son, Julius, left home for his work at the Pontiac Motor Car Company. Before arriving at their destination, the motor of the car in which they were riding became stalled. Julius testified that his father got out of the car and attempted to start the motor by cranking; that while his father did so, he, Julius, remained seated in the car to operate the ignition in the event that the motor should start; that deceased went to the front of the car and while engaged in cranking the motor his foot slipped and he fell to his knee; that the placed his hand to his chest in a position over the heart, groaned and appeared to be short of breath; that he then got back into the car, rested a few minutes, and proceeded to walk the balance of the way to work, leaving Julius with the car which had refused to start.

A fellow workman of the deceased saw deceased as he entered the gates of the Pontiac plant and noted that he was gasping for breath. Shortly thereafter deceased was found unconscious and was pronounced dead upon examination a few moments later.

Defendant contends there was no evidence to go to the jury that deceased sustained an accident. If the testimony of the son, Julius, is to be believed, it would appear that plaintiff had sustained the burden of proof in this regard. Defendant bases its contention on the argument that because deceased was a short man and the son admitted he could only see that portion of deceased above the chest while he was in front of the car cranking the motor, it was impossible for the son to observe as to whether his father had slipped and fallen to his knee. In other words, defendant contends that the testimony as to the happening of an accident is to be discredited as being in contradiction to the physical facts. The trial court was persuaded by this argument. We are, however, disposed to believe upon examination of all of the testimony that it was within the province of the jury to determine the credibility of the witness, Julius, and for it to determine whether or not the facts related by him did or did not occur.

The testimony was conflicting as to whether or not the death resulted ‘directly and independently of all other causes, from bodily injuries sustained * * *, through purely accidental means' or whether deceased died from natural causcs. The following special questions were submitted to the jury:

1. Did Nick Baba lose his life from bodily injuries, independently and exclusively of disease and all other causes causing his death?

2. Did Nick Baba die a natural death from natural causes rather than accidental causes?

The jury answered question No. 1 in the affirmative and question No. 2 in the negative. The findings of...