SanBorn v. Income Guar. Co.

• Citation: 244 Mich. 99,221 N.W. 162
• Decision Date: 01 October 1928
• Docket Number: No. 73,April Term, 1928.,73
• Parties: SANBORN v. INCOME GUARANTY CO.
• Court: Supreme Court of Michigan

244 Mich. 99

221 N.W. 162

SANBORN

v.INCOME GUARANTY CO.

No. 73, April Term, 1928.

Supreme Court of Michigan.

Oct. 1, 1928.

Error to Circuit Court, Wexford County; Fred S. Lamb, Judge.

Suit by Jennie L. Sanborn against the Income Guaranty Company. Judgment for plaintiff, and defendant brings error. Judgment set aside, and new trial ordered.

Argued before the Entire Bench.

Penny & Worcester, of Cadillac, for appellant.

Fred C. Wetmore, of Cadillac, for appellee.

NORTH, J.

This suit is based on an insurance policy. The plaintiff had judgment, and the defendant reviews by writ of error. Plaintiff's husband, William F. Sanborn, died April 16, 1927. At that time he was carrying sick and accident insurance in the defendant company. His policy also provided for the payment of $5,000 to the plaintiff herein in the event of the death of the insured resulting solely from an accidental injury which totally and continuously disabled, him from the happening of such accident until his death. It was made a condition precedent to recovery under the policy that death should ensue within 90 days after the injury, and in the interim the insured should be regularly attended or visited by a physician, meaning thereby that the insured should be personally so attended as often as once each seven days. For years Mr. Sanborn had been librarian of a public library, and in the discharge of his duties he was required to be on his feet much during his working hours, and for a number of years he had suffered from varicose veins. On the 16th or 17th of February, 1927, upon returning from an automobile drive, the insured is claimed to have received an injury to his right leg which caused a red spot to appear in front ‘directly over the bone’ and below the knee. Over defendant's objection Mrs. Sanborn testified that when her husband came into the home after the drive he ‘informed her of an accident,’ and further testified as follows:

‘This spot was nowhere near the place where the varicose veins were. There began at once to be considerable lameness and pain, and I tried very often to have my husband see a physician. But we did not see a physician about it, and he would feel better during the day as the day advanced. On the 28th of February he made a trip to Detroit, coming back on the Pennsylvania (railroad) the next day. After Mr. Sanborn had returned from Detroit he complained of this leg as he had been doing, that there was pain and soreness all the time. I saw the leg every day, and I thought the appearance changed some for a few days; there was one place in the middle that raised up to a little point. Dr. Ricker was called March 9. At that time it seemed to develop more quickly; there was a long red streak at a place above the knee, and that was red and very much inflamed and swollen. Much of the time the doctor came twice a day, and that continued until the 16th of April, when Mr. Sanborn passed away.’

The plaintiff claims that the deceased suffered an injury of the character above indicated, and was corroborated by the testimony of Dr. Ricker, who attended the deceased during his last illness, and Dr. Warthin, who was present at the autopsy on the body of the deceased. The theory of the plaintiff is that blood poisoning resulting from the injury caused Mr. Sanborn's death.

The defendant claims it was not proven that Mr. Sanborn received an accidental injury, and in any event that he was not totally disabled from the date of the alleged injury to the time of his death, nor was he regularly attended by a physician as required by the policy, and, further, that the death of the insured was not caused solely and exclusively by an accidental injury, but instead was caused by thrombosis of the varicose veins resulting in a pulmonary embolism.

From the undisputed proof it appears that Mr. Sanbern continued of perform his usual and ordinary duties at the library for several days after the alleged injury and during that period he was not regularly attended by a physician, the injury being considered ‘quite insignificant,’ according to plaintiff's testimony. In submitting the case to the jury the circuit judge held that the defendant had waived any defense it might have had on the ground that the deceased was not totally and continuously disabled from the time of the accident or that he was not regularly attended by a physician. The defendant has a number of assignments of error touching this phase of the case. On the 25th of May, 1927, the defendant wrote the following letter to the plaintiff's attorney:

‘Re William F. Sanborn, Deceased.

‘In the matter of the claim on Mrs. Sanborn, you have submitted a beneficiary's and a physician's proof in an attempt to show that her husband came to his death by accidental means, but the company, after full consideration of all the facts obtained to date, is not satisfied that death was due to accidental injury, and that, therefore, the claimant is not entitled to recover principal sum allowance under the policy issued to her late husband by our company, and claim has, therefore, been disallowed.

‘Trusting that you will duly inform Mrs. Sanborn of the company's decision, we remain

‘Very truly yours,

‘John G. Malmberg, Vice President.’

Under the decisions of this court, the circuit judge was correct in holding as a matter of law that because of this letter written by the defendant to the plaintiff's attorney, the only defense available to the insurance company was that the death of Mr. Sanborn was not due to an accidental injury. Towle v. Insurance Co., 91 Mich. 219, 51 N. W. 987;Douville v. Insurance Co., 113 Mich. 158, 71 N. W. 517;Stone v. American Mutual Auto Insurance Co., 213 Mich. 194, 181 N. W. 973;Smith v. Mutual Fire Insurance Co., 234 Mich. 119, 208 N. W. 145, citing other cases.

It was incumbent upon the plaintiff to prove: (1) That the deceased did sustain an accidental injury; and (2) that such injury was the efficient proximate cause of the death of the insured. It is asserted by the appellant that there was no competent proof offered tending to establish either of these elements and that there was error in the denial of its motion for a directed verdict. It is neither necessary nor advisable to quote further from the testimony, but we find in this record the plaintiff testified that she observed upon the person of the deceased the physical effects of the alleged injury, and testimony of like character was given by Dr. Ricker and by Dr. Warthin. We also find in the record testimony by these two physicians which would justify a jury in...