Silvia v. Fid. & Cas. Co. of New York

• Decision Date: 23 May 1925
• Citation: 147 N.E. 858,252 Mass. 328
• Parties: SILVIA v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 328

147 N.E. 858

SILVIA

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1925.

Exceptions from Superior Court, Middlesex County; G. A. Sanderson, Judge.

Action of contract by Frederick A. Silva against the Fidelity & Casualty Company of New York to recover on accident policy. Finding for plaintiff, and defendant excepts. Exceptions overruled.

A. P. Stone, of Boston, for plaintiff.

Joseph Wentworth, of Boston, for defendant.

RUGG, C. J.

This is an action of contract brought by the beneficiary named in a policy of accident insurance. The policy insured against bodily injury ‘sustained * * * through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane) resulting directly, independently and exclusively of all other causes, in * * * death.’ There was evidence which would have warranted a finding that the assured, a man about fifty-five years old, had occupied a position of responsibility in a mercantile business. Through the consolidation of several concerns he had been given a position inferior in importance to one formerly a subordinate to him. He was chagrined and nervously affected and received a leave of absence with pay for a time, and then without pay. His physician pronounced him mentally depressed, run down, in a nervous state and despondent but not insane, and no instructions were given to his friends. He was not in financial distress, but was able to live comfortably. When he could not sleep, he not infrequently went out to walk in the neighborhood of his house, returning later to bed. From nine o'clock in the evening of August 5, 1921, when he went to bed, until about nine o'clock the next morning, nothing was shown as to his movements. At the latter time, two hours after low tide, his lifeless body was found in the Mystic river, face downward in the water, about half a mile from his home, one-eighth of a mile from the nearest highway, and two hundred yards from a bath house. There was a path along the shore above high-water mark. The nearby beach sloped off very gradually over a hard bottom for fifty feet, and from there to the channel over mud. The body was about seventy-five feet from the high-water mark at a place where there was very little water and where the tide was lapping around it.

[1][2] The plaintiff offered in evidence a certificate of the city clerk as to the record of the death of the assured. It is provided by G. L. c. 46, in section 1, that the record of the city clerk as to death shall contain amongst other facts, ‘disease or cause of death,’ and in section 19, that such record ‘shall be prima facie evidence of the facts recorded.’ The death return made out by the medical examiner stated as the cause of death, ‘Drowning (probably accidental) Found on shore of Mystic river one-eighth mile below Wellington Bridge) at low tide.’ The defendant objected to the part of this certificate ‘where the cause of death is set forth.’ The exception to the admission of this certificate must be overruled. It is within the express words of the statute. It is within the authority of Shamlian v. Equitable Accident Co., 226 Mass. 67, 115 N. E. 46, and Broadbent's Case, 240 Mass. 449, 452, 134 N. E. 632. The defendant did not ask to have stricken out or disregarded the words, ‘probably accidental’ and therefore any question as to its competency or force apart from the rest of the certificate is not open. See Commonwealth v. Slavski, 245 Mass. 405, 415, 417, 140 N. E. 465, 29 A. L. R. 281, and cases there reviewed.

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