Koycheff v. Mut. Ben. Health & Accident Ass'n

• Decision Date: 07 June 1943
• Docket Number: No. 18.,18.
• Court: Michigan Supreme Court
• Parties: KOYCHEFF v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

305 Mich. 660

9 N.W.2d 883

KOYCHEFF

v.MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

No. 18.

Supreme Court of Michigan.

June 7, 1943.

Action by Philip Koycheff against Mutual Benefit Health & Accident Association on a health and accident policy of insurance in which plaintiff was named beneficiary. Judgment for defendant, and plaintiff appeals.

Affirmed.Appeal from Circuit Court, Wayne County; Allan Campbell, judge.

Before the Entire Bench.

John G. Romanoff, of Detroit, for appellant.

Clifford M. Toohy, of Detroit, for appellee.

BUSHNELL, Justice.

Plaintiff Philip Koycheff, of Bella, Bulgaria, is the beneficiary in a health and accident policy of insurance issued by defendant Mutual Benefit Health and Accident Association to plaintiff's father, Koycho Tsocheff, late of Detroit, Michigan. Tsocheff, when employed, was a wood worker in an automobile plant. He had been divorced from his wife in Bulgaria and had lived in Detroit for some years. He was a quiet fellow, interested in amateur photography and the radio.

When Tsocheff was last seen in the restaurant, of one of plaintiff's witnesses, on the morning of May 15, 1935, he was somewhat worried about the outcome of his pending naturalization proceedings. This witness further testified that Tsocheff had been unemployed since being operated on for a hernia in January, and owed him about $135 for meals since the operation. Another witness that same afternoon saw him board a street car and understood that he was going to collect some money that a friend owed him. One of defendant's witnesses told of a conversation with Tsocheff about a week prior to his death in which the decedent said that the citizenship matter looked ‘pretty bad’ and, he added, ‘Well, I guess there is not much left for me to do but go down and jump in the river.’ Three or four days later this witness asked Tsocheff if he had gotten ‘that foolish idea out of his head,’ and he smiled and said, ‘Well, I will straighten it all out in my own way.’

The body of Tsocheff was found, fully clothed, floating in the Detroit river near Wyandotte on the morning of May 16, 1935. The county coroner gave the cause of death as ‘acute dilatation of the heart. Chronic myocarditis.’ Dr. Brines, who performed a second autopsy at the request of plaintiff, said that, in his opinion, Tsocheff ‘died of drowning’; but Dr. Coleman, a Wayne county medical examiner, who performed the first autopsy, disagreed because of the result of his findings after an examination of the heart, and lungs. They agreed that there was no appearance of violence on the body, and that acute dilatation of the heart could be caused by strain, excitement, or a weakened condition of the heart muscles.

At the close of plaintiff's proofs the insurance company asked the court to direct a verdict in its favor on the grounds that no affirmative proof of loss was given as required by the standard provisions of the policy, and that plaintiff had not offered any proof of accidental death. Defendant's motion was denied. It was renewed at the close of the case and decision thereon was reserved by the trial judge. The case was submitted to the jury, which found in favor of the insurance company.

Appellant contends that the trial judge erred in refusing to adjourn the case in order to permit him to produce Dr. Brines and the clerk of the United States District Court as rebuttal witnesses. A continuance was granted from 11:15 a.m. to 2:00 p.m., and when the doctor did not appear, plaintiff did not request any further delay. The record does not show that plaintiff asked for a continuance because of the non-appearance of the clerk. The trial court did not err in this respect.

Plaintiff also claims the court erred in charging the jury as follows: ‘If the death was caused by...