Sleeter v. Progressive Assur. Co.

• Decision Date: 02 March 1934
• Docket Number: No. 29663.,29663.
• Citation: 253 N.W. 531,191 Minn. 108
• Parties: SLEETER v. PROGRESSIVE ASSUR. CO.
• Court: Minnesota Supreme Court

191 Minn. 108
253 N.W. 531

SLEETER
v.
PROGRESSIVE ASSUR. CO.

No. 29663.

Supreme Court of Minnesota.

March 2, 1934.

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Action by Tyne Sleeter, special administratrix of the estate of Matt Laitinen, deceased, against the Progressive Assurance Company. From an order denying its motion for a new trial, defendant appeals.

Order reversed, and cause remanded, with directions.

Syllabus by the Court.

1. The provision in an accident policy that ‘immediate notice’ of the death of the insured be given the insurer suggests diligence and promptness and negatives unnecessary delay. The provision is satisfied if notice is given within such time as is reasonable under all the circumstances of the particular case.

2. The policy provided that a failure to give notice within a specified time should not invalidate a claim if it were shown ‘not to have been reasonably possible.’ This provision does not demand obedience to a requirement which is unreasonably or unduly exacting; and it is satisfied by the giving of a notice within a reasonable time under all the circumstances.

3. The decedent met with an injury on October 18, 1931. Death occurred on October 20, 1931. The estate was the beneficiary of the policy. The record is indefinite as to who the decedent's relatives were or whether any of them lived in this country. The plaintiff, not a relative, was appointed special administratrix on November 6, 1931. Notice of death was given on November 10, 1931. The finding of the jury that ‘immediate notice’ was given and that notice was given ‘as soon as was reasonably possible’ is sustained.

4. The burden of proving that death was occasioned by external, violent, and accidental means and was within the terms and conditions of the policy was upon the plaintiff. There was no evidence as to how the accident happened, or whether the decedent's auto was wrecked, within one of the conditions of the policy, nor other evidence relative to the circumstances of the accident. The evidence did not make a case for recovery for death by external, violent, and accidental means within the terms and conditions of the policy.

5. The general rule is that issues that have been satisfactorily determined upon a fair trial need not be retried when a new trial is granted if in holding their determination final no prejudice results. The issues as to the giving of a notice of death within the times fixed by the policy were tried fairly and were satisfactorily determined. No prejudice will result in holding their determination final. The finding of the jury that timely notice was given stands as final. The new trial will be upon the issues as to liability upon the policy with the question of the giving of notice eliminated.

[253 N.W. 532]

Nicholas Doll, of Robbinsdale, for appellant.

Louis Sachs, of Minneapolis, and M. H. Greenberg, of Eveleth (Edw. Edelman, of Minneapolis, of counsel), for respondent.

DIBELL, Justice.

Action by the plaintiff as special administratrix of the estate of Matt Laitinen to recover on a policy of accident insurance issued by the defendant upon his life and payable to his estate. There was a verdict for the plaintiff for $1,500. The defendant appeals from an order denying its motion for a new trial.

1. The policy provided as to notice:

‘Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury. In event of accidental death immediate notice thereof must be given to the company.

‘* * * Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such

[253 N.W. 533]

notice and that notice was given as soon as was reasonably possible.’

The requirement that ‘immediate notice’ be given suggests promptness and diligence and negatives unnecessary delay. It does not require the doing of unreasonable things. A sound, common sense construction is to be given. There is a compliance if notice is given within a reasonable time taking into consideration all the circumstances of the particular case. The authorities are so. Frommelt v. Travelers' Ins. Co., 150 Minn. 66, 184 N. W. 565;Cady v. Fidelity & Casualty Co., 134 Wis. 322, 113 N. W. 967,17 L. R. A. (N. S.) 260;Mandell v. Fidelity & Casualty Co., 170 Mass. 173, 49 N. E. 110,64 Am. St. Rep. 291;Curran v. National Life Ins. Co., 251 Pa. 420, 96 A. 1041;Feder v. Midland Casualty Co., 316 Ill. 552, 147 N. E. 468;Francis v. Int. Travelers' Ass'n (Tex. Civ. App.) 260 S. W. 938;AEtna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S. W. 523;Hughes v. Central Acc. Ins. Co., 222 Pa. 462, 71 A. 923;AEtna Life Ins. Co. v. Fitzgerald, 165 Ind. 317, 75 N. E. 262,1 L. R. A. (N. S.) 422, 112 Am. St. Rep. 232,6 Ann. Cas. 551; 2 May, Ins. (4th Ed.) § 462; 2 Bacon, Life & Acc. Ins. (4th Ed.) § 570; 5 Joyce, Ins. (2d. Ed.) § 3292; 7 Cooley's Brief Ins. (2d Ed.) 5914; Fuller Acc. & Employers' Liability Ins. 372; Richards, Ins. (4th Ed.) § 397; 7 Couch, Cyc. Ins. Law, § 1538f; Decennial Digests, Insurance, 539(3); 1 C. J. p. 474, § 185.

This is the rule applied in classes of insurance other than accident. Hagstrom v. Am. Fid. Co., 137 Minn. 391, 163 N. W. 670;Brackett & Co. v. General Acc., F. & L. Assur. Co., 140 Minn. 271, 167 N. W. 798, and cases cited; Farmers' & Merchants' State Bank v. Fidelity & Deposit Co., 163 Minn. 333, 204 N. W. 33, and cases cited.

2. Nor does the phrase ‘reasonably possible,’ found in the portion of the policy quoted, assuming for the moment that the 20-day provision applies to accidental death, demand the doing of something impossible or obedience to a command unduly exacting. It does no more than require the giving of notice within a time which is reasonable under all the facts and circumstances. This is the construction given it. Jones v. Fidelity & Casualty Co., 166 Minn. 100, 207 N. W. 179;Powers v. Fidelity & Casualty Co., 144 Minn. 282, 175 N. W. 111;Maryland Casualty Co. v. Ohle, 120 Md. 371, 87 A. 763;Pacific Mutual Life Ins. Co. v. Smith, 166 Ark. 403, 266 S. W. 279;Great American Co-operative Fire Ass'n v. Jenkins, 11 Ga. App. 784, 76 S. E. 159; Rich v. Hartford A. & I. Co. 208 Ill. App. 506;Provident Life Ins. & Inv. Co. v. Baum, 29 Ind. 236;Providence Life Ins. & Inv. Co. v. Martin, 32 Md. 310, 315;Emerson v. Old Line Life Ins. Co., 190 Wis. 169, 208 N. W. 793;Higgins v. Midland Cas. Co., 281 Ill. 431, 118 N. E. 11;Tromblee v. North Am. Acc. Ins. Co., 173 App. Div. 174, 158 N. Y. S. 1014;Metropolitan Cas. Ins. Co. v. Johnston (C. C. A.) 247 F. 65, 7 A. L. R. 175; Verelst's Adm'x v. Motor Union Ins. Co., [1925] 2 K. B. 137, 14 B. R. C. 1019; 7 Couch, Cyc. Ins. Law, § 1538b; 2 May, Ins. (4th Ed.) § 462; 5 Joyce, Ins. (2d Ed.) § 3289; 14 R. C. L. p. 1328, § 502.

3. The decedent sustained an accident on October 18, 1931. He died on October 20, 1931. He was unmarried. Whether he left relatives in this country does not appear. There is a suggestion that all his heirs were in the old country. He left an uncle; but whether he lived here or in the old country is not clear. This uncle was the stepfather of the administratrix. Whether he was one who would take as an heir is not shown.

The plaintiff learned of the accident to the insured soon after it occurred. After his death she went to the sheriff's office, where his papers were. She was not allowed to take them, but saw the policy in suit and another in a Finnish organization of Ely. She employed an attorney. He applied for her appointment as special administratrix, and letters of administration dated November 6, 1931, were received on November 9, 1931. Written notice of the decedent's death was sent to the defendant on November 10, 1931, and it was received on November 11, 1931. It is a relevant consideration that not until the appointment of the administratrix was there a person authorized to give notice. Woodlock v. AEtna Life Ins. Co. (Mo. Sup.) 225 S. W. 994. Compare Globe Acc. Ins. Co. v. Gerisch, 163 Ill. 625, 45 N. E. 563,54 Am. St. Rep. 486. What the plaintiff did before was as a volunteer. She was not interested in the estate.

Upon the facts shown the jury was justified in finding that ‘immediate notice’ was given and that notice was given ‘as soon as was reasonably possible’ within the meaning of the policy. A different finding would be surprising.

4. The policy provided indemnity ‘against death or disability resulting directly and independently of all other causes from bodily injury sustained through external, violent, and accident means * * *’ subject to this condition or limitation: ‘If the insured shall, * * * by the wrecking * * * of any * * * private motor-driven car,

[253 N.W. 534]

while on a public highway in which insured is riding or driving, or, by being accidentally thrown from such * * * car, suffer any of the specific losses set forth. * * *’

The complaint alleges that on October 18, 1931, the insured ‘sustained injuries while driving in a motor vehicle on a public highway by the wrecking of said automobile and injuring himself severely, by reason of which he died on October 20, 1931.’

The answer contained a general denial. In addition, it specifically traversed the allegations of the complaint quoted; and as a defense it alleged: ‘That whatever injuries the said Matt Laitinen sustained at the said time that said injuries nor any part thereof were caused by accidental means but were sustained by reason of the voluntary act of the said Matt Laitinen in that he drove and operated the said automobile while he was intoxicated and under the influence of intoxicating liquor to the extent where he was unable by reason of said intoxication to control and operate the said automobile in a safe manner and that the said injuries were sustained solely by reason of his voluntary, careless and negligent acts in the operating and driving of said automobile while in said...