Sheehan v. Commercial Travelers' Mut. Acc. Ass'n

• Decision Date: 05 July 1933
• Citation: 186 N.E. 627,283 Mass. 543
• Parties: SHEEHAN v. COMMERCIAL TRAVELERS' MUT. ACC. ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 543

186 N.E. 627

SHEEHAN

v.COMMERCIAL TRAVELERS' MUT. ACC. ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

July 5, 1933.

Report from Superior Court, Suffolk County; N. P. Brown, Judge.

Action by Elizabeth M. Sheehan, executrix of the will of Lee R. Pittinger, deceased, against the Commercial Travelers' Mutual Accident Association. Verdict for plaintiff, and the case is reported for determination by the Supreme Judicial Court.

Judgment for defendant.R. Gallagher, E. T. Doherty, and G. Bolton, all of Boston, for plaintiff.

R. G. Wilson, Jr., of Boston, for defendant.

FIELD, Justice.

The executrix of the will of Lee R. Pittinger, late of Boston, who died July 10, 1927, brought this action against the Commercial Travelers' Mutual Accident Association to recover for the death of the insured by accidental means under a policy of accident insurance, admittedly issued by the defendant on July 6, 1927, payable in case of loss of life to his estate.

A copy of the policy is set forth in the record. The policy is entitled a ‘Double Benefit Certificate Assessment System,’ and provides that ‘This Certificate insures upon the conditions therein named, against loss by accidental means of life, limb, sight and time,’ and certifies ‘that in consideration of the membership fee paid and the statements contained in his application for membership, a copy of which is hereto annexed Lee Ross Pittinger * * * is hereby accepted as a member of this Association, and said Association does hereby insure him, during the continuance of his membership, subject to all conditions and limitations contained in this Certificate of Membership’ against loss thereinafter set forth, including loss of life, ‘which is the direct and approximate result of and which is caused solely and exclusively by external violent and accidental means.’ The policy purports to have been signed and delivered at the defendant's office in Utica, New York.

Among the ‘conditions' referred to are the following: ‘7. * * * Notice of every death for which claim may be made shall be given within twenty days after such death occurs, to the Secretary of the Association, at its office, No. 70 Genesee Street, Utica, New York, with full particulars of the accident and its results, and such notice when actually received by the Association at its said office within said twenty days, shall be deemed sufficient notice; * * * this Association upon the receipt of such notice will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. * * * Affirmative proof of loss must be furnished to the Association at its said office * * * in case of claim for loss * * * within ninety days after the date of such loss. * * * 10. This association shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require, and also the right and opportunity to make an autopsy, in case of death, where it is not forbidden by law, and also the right and opportunity to be present in any case at an autopsy performed on the body of a member under the direction of a public officer, or by the authority or consent of his beneficiary or family. * * * 12. This contract is for all purposes deemed to be executed within, and to be construed in accordance only with the laws of the State of New York. * * * 15. No statement made by the applicant for this insurance, which statement is not incorporated in or endorsed upon this certificate or contained in the application therefor, shall avoid this Certificate or be used in any legal proceeding arising unfer this Certificate. * * * 18. This Certificate, with the annexed copy of the application therefor, constitutes the only and the entire contract of insurance between this Association and said member.’

According to the copy of the policy set forth in the record no ‘copy of the application therefor’ was annexed thereto. The record, however, sets forth a copy of material portions of an alleged application signed by the insured including question 37 thereof-whether the applicant had ‘ever had * * * Heart Disease * * *’ and numerous other diseases-and the answer ‘No’ to this question.

The record sets forth a copy of a letter to the defendant dated July 26, 1927, giving notice of the death of the insured by accident and proofs of loss bearing dates October 5, and October 6, 1927, ‘consisting of three sheets bound together, one sheet being on the form furnished by the defendant,’ another being a letter from a medical examiner for Suffolk county dated October 5, 1927, stating that he performed a post-mortem examination on the body of the insured, but not stating the date or the circumstances thereof, and the third being a certificate of the death of the insured. No question was raised as to the sufficiency of the notice or proofs of loss.

Defence to the action was made on three grounds: (a) That the insured did not die by accidental means, (b) that condition 10 of the policy was not complied with, and (c) that recovery was barred by a false answer to question 37 of the application. The plaintiff contended that the last two defences were waived by the defendant.

The judge refused to rule as requested by the defendant with regard to the defences based upon alleged noncompliance with condition 10 of the policy and the alleged false answer to question 37 of the application, and submitted the case to the jury on the single issue whether the insured died by accidental means. There was a verdict for the plaintiff and the judge reported the case upon the following terms: ‘If my rulings and charge were correct then judgment is to be entered on the verdict; if the case should have been submitted to the jury on the question whether or not upon all the evidence the defendant had waived such defenses as were not submitted to the jury, then a new trial is to be had upon the issue of waiver first, and if the jury find no waiver by the defendant then only upon such additional defences as were not waived but should have been submitted;the findings of the jury with respect to the issue submitted to them in the jury trial already had to stand.’

No question of pleading appears to have been raised at the trial or is reported for our consideration. Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 384, 385, 176 N. E. 114. Nor does the report bring before us for determination any question of error in the trial of the issue submitted to the jury. The questions raised by the judge's charge, which are reported for our decision, are whether other issues should have been submitted to them.

First. The judge was right in not submitting to the jury either the question whether the defence of noncompliance with condition 10 of the policy was waived or the question whether that condition was complied with.

The defense that condition 10 of the policy was not complied with relates only to that part of the condition which provides that the defendant shall have ‘the right and opportunity to be present in any case at an autopsy performed on the body of a member under the direction of a public officer, or by the authority or consent of his beneficiary or family.’ This provision was proper as affording protection to the insurer against fraudulent claims and also against claims which, although made in good faith, were not valid, but it is not to be interpreted as requiring the impossible or the unreasonable. Loesch v. Union Casualty & Surety Co., 176 Mo. 654, 667, 75 S. W. 621. See General Accident Fire & Life Assurance Corp., Ltd., v. Savage (C. C. A.) 35 F.(2d) 587, 593;Johnson v. Bankers' Mutual Casualty Ins. Co., 129 Minn. 18, 151 N. W. 413, L. R. A. 1916F, 1199, Ann. Cas. 1916A, 154;Wehle v. United States Mutual Accident Association, 153 N. Y. 116, 122,47 N. E. 35,60 Am. St. Rep. 598;Tompkins v. Pacific Mutual Life Ins. Co., 53 W. Va. 479, 491, 44 S. E. 439,62 L. R. A. 489, 97 Am. St. Rep. 1006; note, L. R. A. 1915D, 1199. See, also, Mandell v. Fidelity & Casualty Co., 170 Mass. 173, 49 N. E. 110,64 Am. St. Rep. 291;Constantino v. Massachusetts Accident Co., 221 Mass. 464, 468, 109 N. E. 447;Wilcox v. Massachusetts Protective Association, Inc., 266 Mass. 230, 236, 165 N. E. 429. Compliance with this provision was a condition precedent to the plaintiff's right to require payment of the loss and the burden of proof of compliance, excuse for noncompliance, or waiver of the defence based upon noncompliance was on the plaintiff. See Swain v. Security Life Stock Ins. Co., 165 Mass. 321, 323, 43 N. E. 105;Rocci v. Massachusetts Accident Co., 226 Mass. 545, 547, 551, 116 N. E. 477;McCarthy v. Rendle, 230 Mass. 35, 119 N. E. 188, L. R. A. 1918E, 111;Boston Elevated Railway v. Maryland Casualty Co., 232 Mass. 246, 122 N. E. 196;Cohen v. Commercial Casualty Ins. Co., 277 Mass. 460, 462, 178 N. E. 726;Friedman v. Orient Ins. Co., 278 Mass. 596, 598, 599, 180 N. E. 617. Even if, as we do not decide, the policy is to be construed in accordance with the law of New York, no specific statute or decision of New York is referred to in the record or has been brought to our attention (Seemann v. Eneix, 272 Mass. 189, 195-196, 172 N. E. 243) which requires a different construction of the policy. There is nothing in Trippe v. Provident Fund Society, 140 N. Y. 23, 35 N. E. 316,22 L. R. A. 432, 37 Am. St. Rep. 529, referred to by the plaintiff, to indicate that compliance with the provision under consideration would not be held in New York to be a condition precedent to recovery on the policy. Compare Wehle v. United States Mutual Accident Association, 153 N. Y. 116, 47 N. E. 35,60 Am. St. Rep. 598.

1. The evidence, in its aspect most favorable to the plaintiff, did not warrant a finding that the defence of noncompliance with

condition 10 of the policy was waived by the defendant.

There is no substantial dispute as to the facts in respect to this matter. It was agreed that the duties of the defendant's secretary and...