Carrow v. Massachusetts Bonding & Ins. Co.

• Decision Date: 17 July 1919
• Docket Number: 142-1919
• Citation: 72 Pa.Super. 498
• Parties: Carrow, Appellant, v. Massachusetts Bonding & Insurance Company
• Court: Pennsylvania Superior Court

72 Pa.Super. 498

Carrow, Appellant, v. Massachusetts Bonding & Insurance Company

No. 142-1919

Superior Court of Pennsylvania

July 17, 1919

Argued April 22, 1919 [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. Fayette Co.-1916, No. 83 in favor of plaintiff non obstante veredicto, in the case of Clara Carrow v. Massachusetts Bonding and Insurance Company a Massachusetts corporation.

Assumpsit on policy of insurance. Before Reppert, J.

From the record it appeared that the plaintiff was the beneficiary in a policy of insurance which contained the following clause:

" (1) Written notice must be given to the Company at Saginaw, Michigan, within ten days from the happening of any accident or beginning of any illness by reason of which claim is to be made, giving full name and address of the assured. Notice to any agent shall not constitute notice to the company. Failure to comply strictly with said notice requirement shall limit the liability of the company to one-tenth of the amount that would otherwise be payable."

The insured sustained an accident on January 15, 1916, which later resulted in his death. He never gave the company any notice of the accident in accordance with the terms of the policy and received no benefits thereunder. The beneficiary, however, within ten days of the death of the insured gave notice to the defendant, which declined to recognize its liability on the policy on the ground that the death of the insured had not resulted from the accident.

At the trial the jury rendered a verdict in favor of the plaintiff for $ 600.

The defendant submitted, inter alia, two points, one that in accordance with the terms of the policy, as recited, there could not be a verdict for more than $ 60, and one, that under all the evidence, the verdict must be for the defendant, both of which were refused. Thereafter the defendant moved for judgment non obstante veredicto on the whole record. Upon argument of this motion the court directed that judgment be entered in favor of the plaintiff for $ 69.07, being $ 60 or ten per cent of the amount of the policy, as provided for in the policy, in the event of failure to give notice, and $ 9.07 interest. Plaintiff appealed.

Error assigned was the order of the court.

E. C. Higbee, of Sterling, Higbee & Matthews, for appellant. -- The beneficiary was not required to give notice until after the death of the insured: Mahoney v. Maryland Casualty Co., 167 S.W. 845; Life & Accident Insurance Company v. Elliott, 73 So. 476; Globe Accident Co. v. Gerisch, 163 Ill. 625-54 Am. St. Rep. 486; U.S. Casualty Co. v. Hanson, 20 Colo.App. 393; 79 P. 176; Peele v. Provident Fund Society, 146 Ind. 543; 44 N.E. 661; Phillips v. Benevolent Society, 120 Mich. 146; 79 N.W. 1; McFarland v. U.S. Mutual Association, 124 Mo. 104; 27 S.W. 436; Baumaster v. Continental Casualty Co., 124 Mo.App. 38; 101 S.W. 152.

The defendant waived notice of the accident: McCormick v. Royal Insurance Co., 163 Pa. 184; Earley v. Mutual Fire Insurance Co., 178 Pa. 631; Shay v. Phoenix Benefit Association, 28 Pa.Super. 527; Freedman v. Fire Association, 168 Pa. 249; Towle v. Iona Fire Insurance Co., 51 N.Y. 987.

The court was without authority to enter judgment for the specific sum and the only way any error could be corrected was by granting a new trial.

W. J. Sturgis, and with him S. J. Morrow, for appellee. -- The court had authority to enter judgment: Dalmas v. Kemble, 215 Pa. 410; Hunt v. Phila., etc., Ry. Co., 224 Pa. 604; American W. & V. Co. v. Fayette Lumber Co., 57 Pa.Super. 608.

The defendant was entitled to notice of the accident within ten days: Travelers' Ins. Co. v. Nax, 142 F. 653; Hatch v. United States Casualty Co., 83 N.E. 398; Masino V. F. & M. Mut. Ins. Assn., 235 Pa. 419; Girard F. & M. Ins. Co., 64 Pa.Super. 82; Edwards v. Insurance Co., 75 Pa. 378; Campbell v. Accident Association, 172 Pa. 561; Allegheny City v. Railway, 159 Pa. 411.

There was no waiver by the defendant: Lapcevic v. Lebanon Mut. Ins. Co., 40 Pa.Super. 294; Freedman v. Insurance Co., 175 Pa. 350.

Before Orlady, P. J., Porter, Henderson, Head, Trexler, Williams and Keller, JJ.

OPINION

KELLER, J.

As the record stood at the conclusion of the testimony it would have been error for the trial judge to have directed a verdict in favor of the plaintiff for either $ 600 or $ 60, for a question of fact was involved which required the determination of the jury, viz: Whether the insured's death was due wholly to bodily injury sustained solely through external, violent and accidental means, or was due in part to disease or bodily infirmity. The fact that the jury decided that question in favor of the plaintiff did not alter or enlarge the powers of the court under the Act of April 22, 1905, P. L. 286, authorizing the entry of judgment non obstante veredicto upon the whole record.

In the case of Dalmas v. Kemble, 215 Pa. 410, Mr. Chief Justice Mitchell gave a luminous exposition of the effect and operation of the act: " He is 'to enter such judgment as should have been entered upon...