Sleeter v. Progressive Assur. Co., 29663.
| Decision Date | 02 March 1934 |
| Docket Number | No. 29663.,29663. |
| Citation | 191 Minn. 108,253 N.W. 531 |
| Parties | SLEETER v. PROGRESSIVE ASSUR. CO. |
| Court | Minnesota Supreme Court |
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.
Nicholas Doll, of Robbinsdale, for appellant.
Louis Sachs, of Minneapolis, and M. H. Greenberg, of Eveleth (Edw. Edelman, of Minneapolis, of counsel), for respondent.
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:
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; Ætna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S. W. 523; Hughes v. Central Acc. Ins. Co., 222 Pa. 462, 71 A. 923; Ætna 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, 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. Ætna 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 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 intoxicated condition."
For a further defense the defendant alleged that when the insured "sustained the injuries herein he was engaged in violating the law of the state of Minnesota in driving his motor vehicle upon a highway while in an intoxicated condition and that in consequence of the violation of the law as heretofore stated the said injuries were sustained and that the said injuries were the direct result of the unlawful act of the said Matt Laitinen in so operating and driving his said motor vehicle in an intoxicated condition."
The defendant made an offer of proof of substantially the facts alleged relative to intoxication. The offer was rejected.
The burden of proving that the death of the insured was within the terms and conditions of the policy was upon the plaintiff. Milliren v. Federal Life Ins. Co., 185 Minn. 614, 242 N. W. 290; Huestis v. Ætna Life Ins. Co., 131 Minn. 461, 155 N. W. 643; Farrar v. Locomotive Engineers' Mutual Life & Acc. Ins. Ass'n, 143 Minn. 468, 173 N. W. 705; Silva v. Fidelity & Casualty Co., 252 Mass. 328, 147 N. E. 858; Wilkinson v. Ætna Life Ins. Co., 240 Ill. 205, 88 N. E. 550, 25 L. R. A. (N. S.) 1256, 130 Am. St. Rep. 269; Order of United Commercial Travelers v. Nicholson (C. C. A.) 9 F.(2d) 7; 5 Joyce, Ins. (2d Ed.) § 3791; 8 Couch, Cyc. Ins. Law, § 2239; 6 Cooley's Briefs Ins. (2d Ed.) 5283; 1 C. J. p. 496, § 284.
The evidence offered by the plaintiff was directed to the giving of notice. None of it referred to the facts attending the accident. The question submitted to the jury was whether notice was given as required by the policy. If it was, there was to be a verdict for the plaintiff; if not, for the defendant. The plaintiff testified. She had no knowledge of an accident to the insured. She read of one in a Virginia paper. No one else testified about the accident. There was no evidence that the insured was riding or driving in or thrown from an automobile. There was no evidence that his auto was wrecked. There was no evidence by any one who knew of an automobile on a public highway. There was no evidence of an injury to the insured within the terms of the policy. It may be inferred from the briefs and from the pleadings that there was an accident of some kind. In alleging a defense, which it deemed affirmative, the defendant referred to an accident to the insured....
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