Coburn v. Travelers' Ins. Co.
| Decision Date | 24 October 1887 |
| Citation | 13 N.E. 604,145 Mass. 226 |
| Parties | COBURN v. TRAVELERS' INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.B. Carroll, for plaintiff.
The failure to give immediate written notice to the defendant was matter in avoidance of the plaintiff's claim, and should have been specially pleaded. Orrell v. Insurance Co., 13 Gray, 431; Mulry v. Insurance Co., 5 Gray, 541; Manufacturing Co. v. Insurance Co., 8 Cush. 82; Peirce v. Insurance Co., 123 Mass 572.
The condition in regard to immediate written notice was complied with. The letter of September 11th, from the company's agent to the defendant, was early enough to comply with the condition, and the letter shows that prior information had been received by them. Immediate notice can mean no more than notice within a reasonable time. Edwards v. Insurance Co., 3 Gill, 176, 187; Insurance Co. v. Martin, 32 Md. 310; Kingsley v. Insurance Co., 8 Cush. 393 402.
It was a question for the jury whether or not the plaintiff had given the notice required. Edwards v. Insurance Co., 3 Gill, 176, 188. Construing the whole condition together it means that notice must be given within seven months. The "notice" that notice of death should be given to the company's agent was complied with, and this does away with the necessity of giving notice as required by clause 2.
The proofs of loss being admitted as regular and proper in form, and due proofs under the policy, and the defendant placing its refusal to pay on separate and distinct grounds, waived the necessity of giving immediate notice. Clark v. Insurance Co., 6 Cush. 342; Underhill v. Insurance Co., Id. 440; Butterworth v. Assurance Co., 132 Mass. 489, 492; Blake v. Insurance Co., 12 Gray, 265, 271; Benefit Ass'n v. Spies, 114 Ill. 463, 468, 2 N.E. 482; Grattan v. Insurance Co., 80 N.Y. 281. And it was a question of fact for the jury. Insurance Co. v. Kittle, 39 Mich. 51, 54; Gans v. Insurance Co., 43 Wis. 108.
The burden of proving that the deceased died of intentional injuries was upon the defendant, and it should have been specially denied. Freeman v. Insurance Co., 144 Mass. 57, 12 N.E. 372; Germain v. Insurance Co., 30 Hun, 535, and cases cited.
The right to rely on this provision of the policy was waived by relying on a separate and distinct defense. The defendant relied solely on the fact that the death of F.C. Coburn resulted from natural causes, and thus negatived the presumption that he died from intentional injuries. Barrie v. Earle, 143 Mass. 1, 8 N.E. 639; Butterworth v. Assurance Co., 132 Mass. 489, 492; Blake v. Insurance Co., 12 Gray, 265, 271.
It was a question of fact whether the boy, in throwing the stone, intended to hit Coburn; and the fact that the boy was within striking distance does not conclusively show that he intended to hit him. The jury might have found that the boy did not intend to hit him, and that the hitting was accidental.
The condition is susceptible of the construction claimed by the plaintiff, that the intent to inflict the injuries must have existed in the mind of the assured, or some one interested in the insurance. It being a doubtful condition, the meaning most favorable to the plaintiff should be adopted. Dolliver v. Insurance Co., 128 Mass. 315. This being an accident policy, death resulting from the intentional acts of others, not designed by the assured, is not excluded from the provisions of the policy. Schneider v. Insurance Co., 24 Wis. 28; Trew v. Assurance Co., 6 Hurl. & N. 839; Insurance Co. v. Martin, 32 Md. 310; Ripley v. Insurance Co., 2 Bigelow, Ins.Cas. 738. Otherwise, when accident or death resulted from the design of others, the policy would be inoperative.
The burden was upon the defendant to show, and it was a question of fact, whether the intent existed in the mind of the boy to accomplish the precise result which happened in this case. If, by design, a train is thrown from the track, and passengers killed, it does not prevent the policy attaching, unless it is proved that the death of the passengers was intended. In this case, the jury may have found that the boy did not intend to kill Coburn, although he did intend to hit him. Utter v. Insurance Co., (Mich.) 32 N.W. 812.
E.H. Lathrop, for defendant.
"Immediate notice," as required by the policy, is an essential prerequisite to recovery. The agent, Gilmore, was not a general agent, and could not waive the notice. Even if he was a general agent, the policy contract expressly stipulates that its conditions are "not waivable by agent." Little v. Insurance Co. 123 Mass. 380; Lohnes v. Insurance Co., 121 Mass. 439; Kyte v. Assurance Co., 144 Mass. 43, 10 N.E. 518. Immediate notice in this case means reasonable notice under the circumstances. Provident, etc., v. Baum, 29 Ind. 236; Assurance Co. v. Burwell, 44 Ind. 460. The benefit accruing to the defendant by an immediate written notice in this case would have been the opportunity by the defendant of investigation by its surgeons. See condition 6 of policy. In this case the opportunity was lost. There was no evidence of waiver by the defendant, and the court should have so ruled. Smith v. Insurance Co., 1 Allen, 297. There were no acts by defendant from which a waiver could legitimately be inferred. Pettengill v. Hinks, 9 Gray, 169. The whole matter of claimed notice was in writing, viz.: Gilmore's letter to the defendant. The letter, being all the evidence of notice, should have been construed by the court as matter of law. The injury claimed by the plaintiff as the cause of death was "intentional," and the opening of plaintiff's counsel to the jury indicated it as an intentional injury. The language of the policy is plain and unmistakable. There are no qualifications in it. It is intended to exclude payment in case of death by assault, or by direct personal injury inflicted by the insured, or by any other person. The assault, if made as claimed by the plaintiff, was a criminal one, and the law assumes that the party committing an injury by assault entertained the felonious intent. The court in its ruling assumed the facts to be true, as claimed by the plaintiff, that the insured came to his death by injuries inflicted by the boy. It was not necessary for the jury to find that the boy intended to murder the assured. The case differs from Utter v. Insurance Co., (Mich.) 32 N.W. 812, as the language of the policy in the case at bar is largely different from the case cited. In the Michigan case the policy requires that the death "was not the result of design."
OPINION
The policy upon which the plaintiff seeks to recover is known as an accident policy. It insured F.C. Coburn in the sum of $10 a week against loss of time not exceeding 26 weeks "resulting from bodily injuries effected during the term of this insurance, through external violent and accidental means," which should wholly disable him from transacting the business of his occupation, or, if death should "result from such injuries within ninety days," the defendant agreed to pay to his wife, Adelaide, the sum of $2,000. The policy thus written had on the back certain "agreements and conditions under which this policy is issued and accepted." The declaration of the plaintiff sets forth a contract made by the policy; alleges the death of F.C. Coburn from "bodily injury effected through external violent and accidental means," which injury occasioned his death within ninety days thereafter. It further alleges that due proof of such death and injuries was given to said company. The answer of defendant denies every material allegation of plaintiff's declaration, and alleges that, if the death of the assured shall be proved to have occurred within the term of the policy, "he did not die in consequence of external violent or accidental means." The second of the "agreements and conditions" provided: These agreements and conditions concluded with a "notice" that, in case of the death or disabling injury of the assured, notice with full particulars, etc., "should be given immediately to Homer G. Gilmore, agent, 425 Main street, Springfield, Mass." That the full proofs were given to the company within seven months after the injury was conceded, but the...
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