Maryland Casualty Co. v. Harris

• Decision Date: 04 August 1932
• Docket Number: No. 4777.,4777.
• Parties: MARYLAND CASUALTY CO. v. HARRIS.
• Court: U.S. Court of Appeals — Third Circuit

60 F.2d 810 (1932)

MARYLAND CASUALTY CO. v. HARRIS.

No. 4777.

Circuit Court of Appeals, Third Circuit.

August 4, 1932.

Robert A. Applegate, and Rose & Eichenauer, all of Pittsburgh, Pa., for appellant.

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

Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

This is an appeal from a judgment entered upon a verdict in a suit in assumpsit brought by the beneficiary on a policy of accident insurance. The policy contained the following pertinent provisions:

"The Company does hereby insure Hiram Harris * * * against bodily injuries effected solely through external, violent and accidental means, that independently of all other causes results in death or the disabilities set forth.

"Special Payments.

"Not otherwise covered under the insuring clause of the policy.

"1. If sunstroke, freezing or hydrophobia, caused by external, violent and accidental means, or the involuntary or unconscious inhalation of gas or other poisonous vapors, shall result in the death of the Insured within ninety days from the date of the accident or accidental exposure, independently of all other causes, the Company will pay the beneficiary hereinafter named the principal sum originally named herein.

"This policy is issued to and accepted by the insured subject to the following provisions and agreements: * * *

"2. Written notice as early as may be reasonably possible must be given the Company at Baltimore, Md., 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, or of loss of limb or sight, or of duration of disability must also be furnished to the Company within two months from the time of death, or of loss of limb or of sight, or of the termination of disability. * * *

"4. Any medical adviser of the Company shall be allowed to examine the person or body of the insured as often as he may require in respect to the alleged injury or cause of death; and also have the right and opportunity to make an autopsy in case of death. In case of an autopsy, the Company shall have due notice and opportunity for its medical examiner to be present and participate therein."

The insured died on June 5, 1930, while playing golf. His body was interred on June 7, 1930. There was testimony that the insured's death was caused by sunstroke.

The defendant was first notified of the death of the insured by a letter from the plaintiff's attorney dated July 1, 1930. On July 7, 1930, the defendant, through its adjuster, demanded an autopsy. The plaintiff refused this demand, alleging that he had no right or power to authorize an autopsy, and that the insured had been buried since June 7, 1930. On August 26, 1930, the defendant mailed blank proofs of death to the plaintiff's attorney in response to a request made by the latter on August 4, 1930, and stated in its letter...