Jones v. Fidelity & Casualty Co.

• Decision Date: 29 January 1926
• Docket Number: No. 25001.,25001.
• Citation: 166 Minn. 100,207 N.W. 179
• Court: Minnesota Supreme Court
• Parties: JONES v. FIDELITY & CASUALTY CO. OF NEW YORK.

207 N.W. 179

166 Minn. 100

JONES v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 25001.

Supreme Court of Minnesota.

January 29, 1926.

Appeal from District Court, Ramsey County; Charles Bechhoefer, Judge.

Action by C. E. Jones, administrator of James B. Oglesby, deceased, against the Fidelity & Casualty Company of New York. After a verdict for plaintiff, defendant appeals from an order denying its alternative motion for judgment or new trial. Affirmed.

Briggs, Weyl & Briggs and A. V. Junkin, all of St. Paul, for appellant.

Stan D. Donnelly and Warren Newcombe, both of St. Paul, for respondent.

DIBELL, J.

Action by the plaintiff as administrator of James B. Oglesby to recover upon a policy of insurance on his life. There was a verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or a new trial.

Oglesby held a policy in the defendant providing indemnities in case of accidental injury, and for loss of life resulting, under certain conditions, from injury. He was a chef in the employ of the Soo Railway line; his run extending from Minneapolis to Chippewa Falls, Wis. On January 12, 1924, he was hurt by an automobile. There was a severe abrasion of his left leg, one rib was fractured, and he was otherwise bruised. The defendant paid him his weekly indemnity until February 27, 1924, by a draft for $128.57. Attached to it was a receipt, which he signed, reciting that he released the company "from all liability for or on account of bodily injuries accidently sustained by me on or about 12th day of January, 1924." He returned to his work February 18, 1924, and continued with two intermissions until he died on April 28. Notice of his death was not given until July 18, 1924, ten days after the appointment of the plaintiff as administrator. No proofs of loss were given.

The questions are these: (1) Whether there was a failure to give notice of death as required by the policy. (2) Whether there was a failure to furnish proof of death as required by the policy. (3) Whether the release executed by Oglesby, when he received the draft for $128.57, released liability under the policy for death subsequently ensuing. (4) Whether his death resulted necessarily and solely from his injury within the meaning of the policy. (5) Whether his death occurred during the period of continuous total inability to engage in any labor or occupation within the meaning of the policy.

1. Notice of the injury of January 12, 1924, was given the company promptly. Notice of death was not given until July 18, 1924. The policy provides:

"Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury. In event of accidental death immediate notice thereof must be given to the company. Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the company at its home office in New York City or to any authorized agent of the company, with particulars sufficient to identify the insured, shall be deemed to be notice to the company. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice, and that notice was given as soon as was reasonably possible."

Oglesby had no relative in the state. They lived in the south and east. The plaintiff, with whom he lived, and who knew of the policy, sought to locate them immediately upon his death. He did not succeed in doing so until in August. The decedent's relatives had the prior right, for 30 days, to apply for administration. The plaintiff was appointed administrator on July 8, 1924. Within 10 days he gave the defendant notice, or at least the evidence justifies a finding that he did. The heirs of the deceased were the beneficiaries. Not until July 8, when plaintiff became administrator, did he have a direct interest in the policy. The terms of the policy in respect of notice are liberal. It was not intended to bar beneficiaries by a strict limitation or a narrow construction. Whether notice was given as soon as was reasonably possible was submitted to the jury, under appropriate instructions, and its finding is sustained.

2. Formal proofs of death were not made. The policy provides:

"The company, upon receipt of such notice, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting, within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made. Affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the company is liable, and, in case of claim for any other loss, within ninety days after the date of such loss."

The testimony of counsel for the plaintiff, not counsel appearing at the trial, is that he notified the district agent at St. Paul on July 18, 1924, by telephone; that he was referred to the representative of the company at Minneapolis; that he telephoned such representative, explained the situation, and stated that he wanted to give whatever notice was necessary; that such representative said that he thought the company had a release, and requested him to wait a moment; that he then told him, after consulting his files, "Yes; we have a release on that," and later told him that he would see what the home office would do about reopening the case, but that the company was already released. Some weeks later he was told that the company would not reopen the case.

The jury were justified in finding that the company, through its representative, denied liability, that it relied upon the release as a settlement, as it does here, and that there was a waiver of proofs of death. See Zeitler v. National Casualty Co., 124 Minn. 478, 145 N. W. 395; Johnson v. Bankers' Mut. Cas. Ins. Co., 129 Minn. 18, 151 N. W. 413, L. R. A. 1915D, 1199, Ann. Cas. 1916A, 154; Butler Bros. v. American Fidelity Co., 120 Minn. 157, 139 N. W. 355, 44 L. R. A. (N. S.) 609.

3. The release upon which the defendant relies did not discharge liability on the policy for death subsequently occurring. The receipt was for the amount paid as indemnity. It was due. There was no dispute about it, and no compromise. There was no negotiation for a release or surrender of the policy, or for a discharge from further liability in event of death. The court correctly charged the jury that there was no consideration for the release as a discharge of liability for subsequent death. Thompson Yards, Inc., v. Jastrow (Minn.) 203 N. W. 960; Duluth Chamber of Commerce v. Knowlton, 42 Minn. 229, 44 N. W. 2; Demeules v. Jewel Tea Co., 103 Minn. 150, 114 N. W. 733, 14 L. R. A. (N. S.) 954, 123 Am. St. Rep. 315.

4. The provision of the policy as to the scope of the insurance and the indemnity is as follows:

"Part I. Insuring Clause.

"If the insured, while this policy is in force, shall receive a personal bodily injury (suicide, sane or insane, not included) which is effected directly and independently of all other causes through external, violent, and purely accidental means, and which causes at once and continuously after the accident total inability to engage in any labor or occupation, the company will pay the indemnities hereinafter provided for loss resulting therefrom.

"Part II. Specific Indemnity.

"If within the limit of time named in this part, and during the period of total inability to engage in any labor or occupation, any one of the following losses shall result necessarily and solely from said injury causing the said inability as is described in part I, the company will pay, subject to the provisions of part VI:

"A. For loss of life said principal sum."

Whether Oglesby's death resulted from a bodily injury within the insuring clause was for the jury. The plaintiff's experts testified that his death resulted from septic embolic pneumonia, as the direct result of his injury of January 12, particularly the abrasion of the leg. There was no medical testimony opposed. The finding is sustained. Thorne v. Ætna Life Ins. Co., 155 Minn. 271, 193 N. W. 463; Powers v. Fidelity & Casualty Co., 144 Minn. 282, 175 N. W. 111.

5. Whether the death of the deceased occurred within a period of continuous and total inability to engage in any labor or occupation, within the terms of the policy quoted, was for the jury. The deceased returned to his work on February 18, 1924, after his injury of January 12. He continued to work until March 8, then laid off until March 15, worked...