Travelers' Ins Co. of Hartford, Conn, v. Nax

• Decision Date: 02 December 1905
• Docket Number: 1.
• Parties: TRAVELERS' INS. CO. OF HARTFORD, CONN., v. NAX.
• Court: U.S. Court of Appeals — Third Circuit

142 F. 653

TRAVELERS' INS. CO. OF HARTFORD, CONN., v. NAX.

No. 1.

United States Court of Appeals, Third Circuit.

December 2, 1905

Frank S. Prichard, for plaintiff in error.

M Hampton Todd, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

This case comes before us on a writ of error to the Circuit Court of the United States for the Eastern District of Pennsylvania. The action below was in assumpsit, to recover the amount of an accident insurance policy. By the terms of this policy, the company undertook to insure Leonard Nax.

'In the sum of $25 per week, against loss of time not exceeding 52 consecutive weeks, resulting from bodily injuries effected during the term of this insurance, through external, violent and accidental means, which shall, in dependently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation above stated. Or if loss by severance at or above the wrist or ankle joint of one entire hand or foot results from such injuries alone within ninety days, will pay insured one-third the principal sum herein named, in lieu of said weekly indemnity, and on such payment, this policy shall cease and be surrendered to said company; or in event of loss by severance at or above the wrist or ankle joint of two entire hands or feet, or one entire hand and one entire foot or loss of entire sight of both eyes, solely through injuries aforesaid within ninety days, will pay insured the full principal sum aforesaid provided he survives said ninety days. Or if death results from such injuries alone within ninety days, will pay $5,000 to Katherine Nax, wife, if surviving; in event of her prior death, to the executors administrators, or assigns of insured, provided, among other things, that immediate written notice, with full particulars and full name and address of insured, is to be given said company at Hartford, Conn., of any accident and injury for which claim is made. Unless affirmative proof of death, loss of limb, or sight, or duration of disability, and of their being the proximate result of external, violent, and accidental means, is so furnished within thirteen months from time of such accident, all claims based thereon shall be forfeited to the company.'

The following statements of fact, as made by the plaintiff in error, correctly summarize the evidence, and are sufficient for our present purpose: On April 11, 1902, Leonard Nax was cutting a corn, when the knife slipped and he made a slight cut in his toe. His wife bandaged it, but it was thought of no consequence, and he went to his office, as usual, next day, and possibly for several days; but eventually the foot commenced to swell, and the attending physician was called in, possibly a couple of days, possibly a week, after the accident.

During his illness, Leonard Nax was perfectly conscious and intelligent, and able to talk of his affairs. He had previously been insured in the same company, had had an accident, and had notified the company of it and made settlement. His son, who was in business with him, and who ordinarily attended to his affairs, knew that he had an accident policy, and knew of the previous accident and settlement. His wife also knew that he had previously had an accident and that at that time he had been insured in some company. No notice whatever of the accident was given by Leonard Nax, or by any one on his behalf, to the insurance company during the 72 days between the date of the accident and the date of the death. After his death, no examination was made of his papers either by his widow or by his son. He had a safe in his house, but this was not opened, or examined, and the widow went away for over two months. When she came back to the city she opened the safe, examined the papers and found the accident insurance policy. This was the first knowledge she had of this particular policy. On August 28th, 67 days after the death, she gave through a broker who had obtained the insurance, notice to the Philadelphia agents of the Travelers' Insurance Company, that the insured met with an accident on April 11th, and that this had resulted in his death on June 22d.

There is no dispute as to the facts thus recited. There were other matters in evidence dealt with by the court, in submitting the case to the jury, but which are without pertinence to the point which seems to us determinative of the case, which point is that, on the undisputed facts of the case, the binding instructions to the jury, to render a verdict for the defendant, as asked for and refused by the court, should have been given. The assignments of error cover this point generally, as well as more specifically on exceptions to the charge of the court. We quote the only language in the charge of the learned trial judge, referring to this matter of immediate notice of the accident, as required by the policy, as follows:

'In this case the policy provides that Mrs. Nax may recover in certain contingencies, provided immediate written notice with full particulars and full name and address of the insured is to be given said company at Hartford, Connecticut, of any accident or injury for which claim is made, and unless affirmative proof of death, loss of limb or sight or duration of disability, and of their being the proximate result of external, violent and accidental means is so furnished within thirteen months of the time of such accident all claims based thereon shall be forfeited to the company. Counsel for the insurance company, in a point, requested us to say that there has been such a failure to give notice of this accident as precludes any recovery from the insurance company in this case. This we have declined to do, leaving it to you, under all the evidence in the case, which we will not discuss here. You will have the letters and the acts of the parties here and the circumstances and proof before you to aid you in determining that question, whether under all the evidence there has been a waiver of this requirement of immediate notice and whether the notice that was given is and was, under the circumstances of the case, such immediate notice as was required by this policy, and whether the company waived that requirement by its course of action, as evidenced by the facts before you.'

The only evidence relied upon, as showing a waiver of the requirement of 'immediate notice,' is in the correspondence that ensued between the representative of Catharine Nax and the general agents of the defendant in Philadelphia, after August 28th, when notice of the death of the insured, and of the accident from which it resulted, was for the first time given,-- 67 days after the death and 139 days after the accident. On September 17th, the local agents wrote to the broker, as follows:

'Referring to our conversation concerning the case of Mr. Leonard Nax, deceased, we beg to advise you that the company, after considering the evidence thus far submitted, authorize us to say that there does not appear to be a valid claim under the accident policy, no doubt for the reason as it appears to us, that the cutting of a corn, being voluntary on the part of the assured, and in a sense a surgical operation, cannot properly be considered as external, violent and accidental.'

Fuller proofs were thereupon furnished, and forwarded by the local agent to the company, and on February 20, 1902, the local agents wrote to the defendant in error's broker, that the home office had disallowed the claim, 'the principal reason being that death was not due solely to accidental causes, but resulted wholly or partly, directly or indirectly, from disease, and is not covered by the policy. In addition to this, there was a failure on the part of the beneficiary to give immediate written notice of the alleged accident, as required by the contract, which prevented the company from making necessary investigation at a time when it would have been of some...