Johnson v. Bankers Mutual Casualty Insurance Company
| Decision Date | 05 March 1915 |
| Docket Number | 19,073 - (273) |
| Citation | 151 N.W. 413,129 Minn. 18 |
| Parties | HENRY A. JOHNSON v. BANKERS MUTUAL CASUALTY INSURANCE COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Washington county by the administrator of the estate of A. L. Swenson, deceased, to recover $600 upon defendant's policy of insurance for the death of his intestate. The case was tried before Stolberg J., and a jury which returned a verdict for the amount demanded. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Death by drowning -- evidence.
1. The evidence in this case sustains a finding that deceased suffered death from accidental drowning.
Demand for autopsy.
2. Where a policy of accident insurance gives to the insurer the right, in case of death, to an autopsy by a medical adviser and the policyholder suffers death claimed to be accidental, and leaves a widow who is also sole beneficiary, the widow is the proper person upon whom to make demand for an autopsy.
Demand for autopsy.
3. It is not necessary that the demand be made upon her in person, so long as it is communicated to her.
Demand for autopsy.
4. Such a demand to be effective must be made within a reasonable time after death and at a reasonable time and upon a proper occasion, and, when made upon the widow between the death and burial of her husband, the language should leave nothing to intendment but should be free from doubt or ambiguity.
Demand for autopsy -- refusal of demand -- right of action.
5. In this case a demand for an autopsy was made by the claim auditor of the company at 10:18 a.m. The funeral was set for 1 p.m. Friends were beginning to arrive from a distance and the body was being prepared for burial. The demand was a present demand calling for present compliance or refusal. The medical adviser whom the auditor had in mind to perform the autopsy was in Minneapolis, many miles away. Compliance with the demand would have caused a delay in the funeral obsequies, the extent of which cannot be determined. The claim auditor had been within two miles of the place of demand investigating the cause of death since the day before. Held, the demand for an autopsy was not made at a reasonable time or upon a proper occasion, and its refusal did not defeat right of action under the policy.
Waiver of notice of claim.
6. Failure to give notice of claim within the time stipulated in the policy is waived where, in response to the notice, the company denies liability wholly on another ground.
Cross-examination of defendant's claim auditor under the statutes.
7. No reversible error can be predicated on a ruling permitting plaintiff to call the claim auditor of defendant for cross-examination under the statute, where plaintiff did not seek to avoid his testimony and the form of the questions would have been proper had he been called as plaintiff's witness.
Simon Michelet and Clyde R. White, for appellant.
Wilson & Thoreen, for respondent.
A. L. Swenson held a policy of accident insurance issued by defendant, covering death from accidental injury, and payable in case of his death to his estate. On June 15, 1913, Swenson was visiting with a relative, Peter Holm, on a farm situated on Sand lake, a small lake near New Scandia, in Washington county. He dressed himself in a bathing suit, took a row boat, went a short distance out upon the lake and dove head first into the water. He came up once, appeared to struggle, and then sank and was seen no more alive. Next day the body was recovered. There were some bruises on the face which the evidence shows must have been caused before death. There is abundant evidence of accidental drowning, in fact the evidence would not sustain any other conclusion. There is some evidence that deceased had suffered from heart trouble, but no substantial evidence that he died from any such ailment. The defenses urged are as follows:
The policy provided that: "The company shall in no event be liable * * * in any case where any medical adviser appointed by it shall have been denied the right or opportunity of making a personal examination, or of holding an autopsy in case of death." It is claimed that the right to an autopsy was denied. The facts as to this are as follows: C. E. Drennan, claim auditor of defendant, learned of the death of deceased about 11 a.m. of June seventeenth. He was then at Minneapolis. He telephoned this plaintiff who was the local agent of the defendant at New Scandia, and at 5:25 p.m. took a train for Copas, the nearest railway point to New Scandia. He arrived at Copas at 6:53 and at New Scandia at 7:30. He was then within two miles of the Holm farm, where deceased met his death, and where the body of deceased then was, and where the widow of deceased then was. Drennan spent the evening at New Scandia making investigations. About 10 a.m. the next day he was driven in an automobile to the Holm residence. The funeral was set for 1 p.m. Numerous friends and relatives from a distance had already gathered to attend the funeral, and more were expected on an eleven o'clock train. In this situation, and at 10:18 a.m. Drennan sought out Mrs. Magney, the mother of the widow of deceased, and, as he himself testified, made the following demand: "The substance of it was, that under our policy we had the right of performing an autopsy in case of death, and that as a representative of the company I wished to have that right in order to determine the cause of death and see whether there was anything due them under the policy or not." Mrs. Magney communicated the demand to the widow of deceased. The demand was refused. Drennan testified that the reason given was "they said they thought it was too close the time of the funeral."
Plaintiff does not question the validity of this provision in the policy which gave defendant a right to demand an autopsy, and, if the demand for an autopsy was properly made, its refusal defeats any right of action in the policy. The question is as to the sufficiency of the demand.
The demand was made upon the proper person. The widow of deceased was the sole beneficiary under the policy and she had control of the body of deceased. Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am. St. 370; Lindh v. Great Northern Ry. Co. 99 Minn. 408, 109 N.W. 823, 7 L.R.A. (N.S.) 1018. She alone had the right to say whether or not an autopsy should be held. It was proper that the demand be addressed to her.
It was proper also to communicate the demand to her through her mother. It was not necessary that demand be made upon her in person. A decent respect for the proprieties of the occasion made it peculiarly proper that defendant communicate through some one who could better approach her with a matter of serious business than could a stranger.
We are of the opinion, however, that the time and circumstances of the demand were such that its refusal did not operate to defeat plaintiff's right of action. We must bear in mind that, except for some formal requirements, and except for the chance that the autopsy would develop facts of which we have no...
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