Nax v. Travelers' Ins. Co.
| Decision Date | 28 May 1904 |
| Docket Number | 36. |
| Citation | 130 F. 985 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | NAX v. TRAVELERS' INS. CO. |
A. T Freedley, for plaintiff.
Frank P. Prichard, for defendant.
This is a motion for a new trial. The plaintiff, the death beneficiary under an accident policy held by her husband brought suit to recover $5,000 for his death, which she alleged resulted from accident. The jury found in favor of the plaintiff, and a new trial is moved for.
The alleged accident was a self-inflicted knife cut of the insured's toe while he was trimming a corn. Later, blood poisoning ensued, and resulted in his death. Upon the controverted question of the fact whether death resulted from the wound or from diabetes, the finding of the jury was with the plaintiff, and, being so settled, a new trial should be refused, unless the injury was not an 'accidental external, and violent' one within the meaning of the policy, or unless the court should have held that notice was not given by the plaintiff beneficiary as provided by the policy. After full consideration, we are of opinion the court would have erred in taking this case from the jury. That the injury in question was an accidental, external, and violent injury accords not only with our own views, but with well-considered cases, of which it suffices to cite Western Commercial Travelers' Ass'n v. Smith, 85 F. 405, 29 C.C.A. 223, 40 L.R.A. 653.
This leaves the question of notice. It will be noted the policy provides for two distinct claims thereunder-- one by the insured for weekly indemnity, the other by a named beneficiary in the case of death. As no right or interest in the death benefit vested in the beneficiary until the death of the insured, it would seem that no duty in the way of notice was imposed on her until the death of the insured vested a claim in her against the insurer. Whatever therefore, may have been the duty of the insured as to notice in order to secure indemnity, it is clear to us the notice the death beneficiary was to give was not a notice of the accident, but of death. Western, etc., Ass'n v. Smith, supra. Such being the case, should the court have held that the notice given by Mrs. Nax, the beneficiary, did not answer the requirements of the policy? The deceased died June 22d, and Mrs. Nax gave notice on August 28th following. If these two facts stood alone, not modified or affected by other facts and circumstances, we assume it would be the duty of the court to determine the sufficiency or otherwise of the notice. But we are equally clear that the plaintiff had a right to demand that the jury, and not the court, should pass on the effect of the peculiar modifying facts and circumstances of this case. Among other such facts, we note that Mr. Nax did not know she was a beneficiary under the policy, or of its existence; she was an aged woman; her husband had a trying and disagreeable illness, which she had helped nurse; her daughter came from Buffalo, and, immediately after the...
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