Harris v. Maryland Casualty Co.

• Decision Date: 21 October 1931
• Docket Number: No. 6445.,6445.
• Citation: 2 F. Supp. 188
• Parties: HARRIS v. MARYLAND CASUALTY CO.
• Court: U.S. District Court — Western District of Pennsylvania

2 F. Supp. 188

HARRIS v. MARYLAND CASUALTY CO.

No. 6445.

District Court, W. D. Pennsylvania.

October 21, 1931.

Burtt Harris, of Pittsburgh, Pa., for plaintiff.

Rose & Eichenauer, of Pittsburgh, Pa., for defendant.

SCHOONMAKER, District Judge.

This is an action on an accident insurance policy, wherein the beneficiary seeks to recover the amount payable on the death of the insured, alleged to have been caused by sunstroke. The trial resulted in a verdict for the plaintiff for the face of the policy.

The defendant has moved for a new trial, urging: (1) That the death from sunstroke suffered while the insured was playing golf — thus voluntarily subjecting himself to the heat of the sun — was not a death caused by external, violent, and accidental means within the terms of the policy; (2) that the court erred in holding that the affirmative proof of death called for by the policy was waived by the conduct of the defendant; (3) that the court erred in holding that the refusal of the beneficiary to permit an autopsy did not void the policy.

The first question was before the court on affidavit of defendant raising questions of law, and we filed an opinion herein on March 12, 1931, holding that a sunstroke suffered while insured was playing golf was within the terms of the policy. We still adhere to that opinion, and beyond that, need add nothing on this branch of the case.

As to the second question, namely, the failure to give affirmative proof of death within two months, we find that the policy contains this provision: "This policy is issued to and accepted by the insured subject to the following provisions and agreements: * * * Written notice as early as may be reasonably possible must be given the company at Baltimore, Maryland, of any accident and injury for which a claim is to be made, with full particulars thereof, and full name and address of the insured. Affirmative proof of death by external, violent, and accidental means * * * must also be furnished to the company within two months from the time of death."

In the instant case, the insured died June 5, 1930, and was buried on June 7, 1930. On July 1, 1930, the beneficiary gave written notice to the defendant, by registered mail, of the fact of the death of the insured. On July 7, 1930, the defendant, through its agent, A. W. Cox, demanded an autopsy on the body of the insured. This request was refused. On August 26, 1930, the defendant, among other causes, denied its liability on account of this refusal to permit an autopsy. The technical requirement of the policy that affirmative proof of death by external, violent, and accidental means should be furnished to the company within two months from time of death, would be fatal to plaintiff's right of recovery unless the defendant waived that requirement. We are of the opinion that the demand of the defendant for an autopsy was a waiver of this affirmative proof called for by the terms of the policy, because, in our opinion, it was necessarily implied from this requirement that the company considered itself bound, in case an accident had occurred from which death approximately followed, independently of all other causes. Such was the precise ruling in the case of the Supreme Court of Tennessee in the case of Fisher v. Travelers' Insurance Company, 124 Tenn. 450, 138 S. W. 316, 331, Ann. Cas. 1912D, 1246. In addition to that, we believe that the refusal of the company to recognize its liability under the policy by reason of the failure of the beneficiary to permit an autopsy waived this requirement. It would be perfectly idle to submit affirmative proofs of loss where the defendant company already had acted upon the policy, first, in the taking of affirmative steps to secure an autopsy; and, second, by declining the liability because an autopsy had not been permitted. The...