Cavallero v. Travelers Insurance Company of Hartford
| Decision Date | 29 May 1936 |
| Docket Number | 30,715 |
| Parties | DOMINICA CAVALLERO v. TRAVELERS INSURANCE COMPANY OF HARTFORD, CONNECTICUT |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county by the special administratrix of the estate of Bruno Cavallero to recover under an accident policy for the latter's death. The case was tried before Bert Fesler, Judge, and a jury. There was a verdict for defendant. Plaintiff appealed from an order denying her motion for a new trial. Reversed.
Insurance -- accident -- action on policy -- proximate cause of death -- question for jury.
1. In this action to recover under an accident insurance policy for the death of the insured, the issue of whether the death was the proximate result of the alleged accidental injuries directly and independently of all other causes, was a question of fact for the jury.
Insurance -- accident -- construction of policy.
2. The provision of the policy that it shall not cover "injuries of which there is no visible contusion ow wound on the exterior of the body of the insured," being an exception to the coverage clause, should be given a reasonable and practical, but liberal, construction as to the insured. The general rule is for strict construction as against the insurer.
Insurance -- accident -- action on policy -- demand for autopsy.
3. The evidence is insufficient to justify the jury in finding in defendant's favor on the issue of demand for and refusal to permit an autopsy.
Insurance -- accident -- action on policy -- burden of proof.
4. The burden of proof on the second and third issues submitted referred to in paragraphs 2 and 3 next above, rested upon the defendant.
Appeal and error -- review -- general verdict on two or more material issues submitted.
5. Where two or more material issues are submitted to the jury and a general verdict returned, and one issue so submitted is not sustained by any evidence, there must be a new trial unless it conclusively appears that the party in whose favor the verdict was obtained was entitled thereto as a matter of law on one or more other issues submitted.
Courtney & Courtney, for appellant.
Baldwin, Holmes, Mayall & Reavill, for respondent.
Plaintiff appeals from an order denying her motion for a new trial.
The action is one to recover on an accident insurance policy issued by defendant to Bruno Cavallero. Plaintiff, his mother, sues as special administratrix to recover under this policy for the death of the insured. The policy insures, as provided in the general coverage clause at the beginning thereof, "against loss resulting from bodily injuries effected during the term of this insurance directly and independently of all other causes through external, violent and accidental means, as specified in Parts A and B, subject to the conditions and limitations herein contained." Part A provides, in case of death caused by accidental injuries to the insured whille riding as a passenger in a public conveyance provided by a common carrier, the company will pay to the executor or administrator of the insured the sum of $5,000. Part B provides for payment of three-fifths of the amount specified in Part A if the injury is sustained elsewhere than as specified in Part A.
The policy contains: (1) The general coverage clause stated; (2) the standard provisions prescribed by 1 Mason Minn. St. 1927, § 3417; (3) what is headed "Additional Provisions." In these additional provisions is found the following:
Then follow some 36 other exceptions from the coverage of the policy. In the standard provisions is contained the following:
"The company shall have * * * the right and opportunity to make an autopsy in case of death where it is not forbidden by law."
The claim of the plaintiff, in substance, if that the decedent, on November 15, 1934, while riding as a passenger in a bus operated by an interstate common carrier of passengers, passing westward in the state of Nebraska, received a jolting injury which caused his death. Decedent had started from Duluth on a journey to California by bus transportation. It is claimed that the injury which it is alleged caused his death was received when the bus in which he was riding, in going over a rough road, jolted to such an extent as to throw decedent and a fellow passenger, sitting with him in the rear seats of the vehicle, up so as to touch the top of the bus with their heads; that they were nearly thrown out of the bus and went up and down; that this jolting caused such injury to decedent that he died therefrom two or three days later; that the death resulted from traumatic injury to the spleen.
Defendant, by its answer, denies that the decedent suffered any injury while a passenger on the bus in question, or that his death resulted from any injury so suffered. It sets up two affirmative defenses:
(a) That the policy provides: "The company shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law." That on December 26, 1934, it demanded an autopsy, and permission therefor was denied.
(b) That the policy provides: "This insurance shall not cover disappearance, nor injuries of which there is no visible contusion or wound on the exterior of the body of the insured." And that there was no visible contusion or wound on the exterior of decedent's body.
On the trial plaintiff's medical expert, who examined the decedent the day after the accident, testified that he found decedent in great pain and suffering apparently from shock; that there was pain in the left side of the abdomen in the region of the spleen; that the abdomen was distended and hard, and there was a mass presentation on the left side thereof at the place where the spleen was located. He consulted with and was assisted by another doctor, and, because of decedent's general condition, pulse, temperature, and increasing suffering and weakness, an operation was deemed necessary. The operation was performed the next day and the spleen found in such condition that it had to be removed. The patient died the day after the operation. The doctor found no wounds or bruises on the exterior of the body. He gave his opinion that the condition was caused by traumatic injury to the spleen and that it could have been caused by the jolting, testified to by another witness, received while decedent was riding in the bus. Another medical expert, basing his opinion on the evidence for plaintiff, gave the same opinion, that the condition of the spleen was caused by trauma and could have come from the jolting received in the bus. There is no suggestion that there had been any trauma or injury unless caused by the jolting mentioned, and no evidence that decedent was suffering from any disease prior to the claimed occurrence in the bus.
For the defendant, two medical experts gave testimony that in their opinion the condition of decedent's spleen was not caused by trauma or accidental injury but by disease, and that such condition could not reasonably have been caused by the jolting received while riding in the bus, as described by plaintiff's witness. There was other evidence for defendant that the road in question was not rough so as to cause any jolting at the place where the accident is claimed to have occurred.
The court submitted to the jury, in a clear charge, three issues of fact. The first issue was whether the death of the insured was the proximate result of his alleged accidental bodily injuries, directly and independently of all other causes. The second issue was whether the accidental injury, if any, claimed by plaintiff to have been caused to decedent from the jolting of the bus, caused any visible contusion or wound on the exterior of the body of the decedent. The third issue was whether a demand by defendant for an autopsy was made within a reasonable time and under reasonable conditions after defendant was informed of the death.
As to the first issue, it is not...
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