Rin v. Cas. Co. of Am.

• Citation: 41 Mont. 175
• Parties: DA RIN v. CASUALTY CO. OF AMERICA.
• Decision Date: 25 April 1910
• Court: United States State Supreme Court of Montana

41 Mont. 175

DA RIN

v.CASUALTY CO. OF AMERICA.

Supreme Court of Montana.

April 25, 1910.

Appeal from District Court, Silver Bow County; Jeremia J. Lynch, Judge.

Action by Peter Da Rin, administrator of Joseph Battista Pinazza, against the Casualty Company of America. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Kremer, Sanders & Kremer, for appellant. Jesse B. Roote and Jas. E. Murray, for respondent.

BRANTLY, C. J.

Action by the plaintiff, as administrator of Joseph Battista Pinazza, deceased, to recover on a policy of insurance for the death of his intestate, caused by accident. On May 20, 1908, one Labek, a miner working underground in a drift in one of the mines of the Boston & Montana Consolidated Copper & Silver Mining Company (hereafter referred to as the mining company), in Silver Bow county, was overcome by gas. Upon discovery of his condition, through the outcry of his companion, Pinazza, with others who were working with him near by, ran to his assistance. Pinazza preceded the rest, and while attempting to drag the injured man out into the other workings where the air was better and he could have relief, he was himself overcome, and thereafter, on the same day, died from the effects of the inhalation. Prior to that time, and for the benefit of the miners and others in its employ, including Pinazza, the mining company had negotiated with the defendant a policy of insurance, under the terms and stipulations of which the latter insured these employés against bodily injuries, whether resulting in death or not, “suffered directly through external, violent and accidental means, on account of an accident occurring during the term” of the policy, by reason of the business operations therein stated, and “while on the premises of the company or upon the ways immediately adjacent thereto, provided for the use of such employés or the public.” The policy, among other special agreements, contains the following:

“(A). If the death of any employé shall so result within ninety days from such injuries, independently of all other causes, the company will pay to the assured a sum equal to fifty-two weeks' wages, computed at the rate per week received by such injured employé at date of accident; but such sum shall not exceed one thousand five hundred dollars.”

“(F). Recovery may be had for the benefit of the same employé under one of the foregoing clauses only as respects the result of injuries caused by any one accident; and in no event shall the company's liability for a casualty resulting in injuries to or death of several persons, exceed ten thousand dollars. ***

“(G). It Is further understood and agreed that injuries, fatal or otherwise, resulting from poison or anything else accidentally absorbed or inhaled while actually engaged in operations connected with business of the assured, are covered by this policy.”

It also contains the following general agreements:

“General Agreements.

“1. The assured, upon the occurrence of a casualty covered hereby shall give immediate written notice thereof, with the fullest information obtainable at the time, to the company's duly authorized local agent or to its home office in New York City; and shall also give immediate written notice, with full particulars, of any and all claims which shall be made on account of a casualty covered hereby; and shall at all times render to the company all possible co-operation and assistance.

“2. Affirmative proof of death, or loss of limb or sight, or of duration of disability must be furnished to the company within two months from the time of death, loss of limb or sight, or termination of disability. Legal proceedings for recovery hereunder may not be brought within three months from date of filing final proofs at the company's home office; nor brought at all unless begun within six months from time of death, loss of limb or sight, or termination of disability. ***

“10. This policy does not cover disappearance, or suicide-sane or insane; nor injuries of which there is no visible mark upon the body, nor injuries resulting from voluntary overexertion, exposure to unnecessary danger or violation of law,” etc.

There was indorsed upon it the following, as an amendment to paragraph 10 of the General Agreements: “Endorsement: It is understood and agreed that the clause in paragraph 10 of the General Agreements reading ‘nor injuries of which there is no visible mark upon the body,’ is not to apply to death or permanent disability, resulting directly from an accident covered by this policy, provided that affirmative proof is given to the company that said death or permanent disability was the direct, sole result of an accident as aforesaid.”

The policy was taken by the mining company in its own name, but the premium paid for it was obtained by deductions by the mining company from the monthly wages of all the employés for whose benefit it was negotiated. These deductions were made by their consent. At the time of his death, Pinazza had been receiving wages at the rate of $28 per week. It is alleged in the complaint that the death of Pinazza occurred during the term of the policy; that the mining company, on behalf of deceased and on or about May 23, 1908, gave to the defendant written notice of the casualty, and furnished to it affirmative proof of the resulting death, with the fullest information concerning it, according to the terms of the contract, using for that purpose a blank form supplied by the defendant, that the mining company and the plaintiff have performed all the conditions of the contract to be by them performed, and that under the agreements and stipulations contained in it there is due and owing to the plaintiff $1,456, no part of which has been paid, though demand has been made. Judgment is demanded for this amount. The answer of the defendant, after denying generally the material allegations of the complaint, alleges, as affirmative defenses, the following: (a) That the plaintiff failed to comply with clause 1 of the General Agreements; (b) that he likewise failed to comply with clause 2 of these agreements; (c) that the deceased exposed himself to unnecessary danger, thus causing his own death; and (d) that the plaintiff failed to comply with paragraph 10 of the General Agreements, as amended by the clause indorsed upon the policy. There was issue by reply. The plaintiff had verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial.

Though the policy in terms designates the mining company as the insured, no question is made but that the defendant is directly liable to the plaintiff, if he, or any one else on behalf of the deceased, furnished the proof required by the terms of the policy. The principal contention is that the evidence is insufficient to justify the verdict, in that it does not show that affirmative proof that the death of Pinazza was the direct, sole result of poisoning by an inhalation of poisonous gas was furnished to the defendant within two months, or at all.

The defendant did not introduce any evidence. Plaintiff's evidence tends to show the following: On the next day after the death there was delivered to the local agent of the defendant, signed by the foreman of the mining company, a report on the death of Pinazza, giving the name and address of the mining company, the name, address, and occupation of the deceased, together with the weekly rate of wages paid him, the place where the accident occurred, the name of the foreman in charge, the hospital call made, the name of the attending physician, the alleged cause of the death, and the names and addresses of all persons who witnessed the accident. This was made upon a printed blank furnished by the defendant. The cause of the death is stated as follows: “Battista Pinazza went to 955 to help rescue a man who was knocked out by gas, and inhaled gases which caused his death.” There is no evidence as to how or upon what information this report was made up other than the following: Mr. Burns, a clerk of the mining company, testified: “What I have to do with the accident, part of it, is to receive the report of the accident that comes from the different timekeepers at the mines, enter them in this book [record of accidents], and turn them over to whoever is in charge-the superintendent-for his signature. *** The original is sent to their [defendant's] agents here, and the copy that I keep placed on file.” Thomas, one of the local agents of the defendant, stated: “I said I received a report similar to this; I never received any other report than this, in connection with this, to my knowledge or recollection. I believe this was the only report served on me; that is to the best of my recollection.” There is not any evidence tending to show that there was any communication of any kind between the defendant and the mining company, or the plaintiff, after the delivery of the report. From this evidence it is a fair inference that the report was made up by Burns, the clerk, from the statements of the timekeeper, upon one of a supply of blanks kept for that purpose, and that it was signed by the foreman as a part of the routine business of the office. It is conceded that the report was a sufficient notice of the death. The question, therefore, is whether it is sufficient as affirmative proof of the cause of death, required by paragraph 2 of the General Agreements and the indorsement amendatory of paragraph 10.

The giving of the notice and the furnishing of proof are distinct and separate acts. Proof of death, seasonably made, may serve the purpose of both notice and proof, because the formal statement of facts made in the proof ordinarily must include all the information imparted by the notice....