Trippe v. Provident Fund Soc.

• Decision Date: 28 November 1893
• Citation: 35 N.E. 316,140 N.Y. 23
• Parties: TRIPPE v. PROVIDENT FUND SOC.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 23

35 N.E. 316

TRIPPE

v.PROVIDENT FUND SOC.

Court of Appeals of New York.

Nov. 28, 1893.

Appeal from superior court of New York city, general term.

Action by Mary L. Trippe against the Provident Fund Society on a policy of accident insurance. From a judgment of the general term (23 N. Y. Supp. 173) affirming a judgment entered on a verdict for plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed.

John L. Hill, for appellant.

Wm. Henry Arnoux, for respondent.

O'BRIEN, J.

The defendant is an accident insurance company, upon the co-operative or assessment plan, and on the 13th day of March, 1891, issued its policy or certificate to Frederick W. Trippe, the plaintiff's intestate, whereby it agreed, upon the considerations referred to in the instrument, to pay to him certain sums specified as a weekly indemnity on account of disability from accidents within the terms of the contract, and also the sum of $5,000 in case of death ‘through external, violent and accidental means.’ The place of business of the insured was in a building near Park place, in the city of New York, which, on the 22d of August, 1891, fell, crushing to death in the ruins several of the occupants, and among them the insured. The destruction of this building, and the consequentloss of life, is known in the events of that year as the ‘Park Place Disaster.’ The claim is resisted by the defendant upon the ground that certain conditions expressed in the certificate, which were warranties or conditions precedent to liability, have not been complied with. The most important question, and that most strenuously insisted upon by the defendant, arises upon the following condition: ‘Notice of any accidental injury, for which claim is to be made under this certificate, shall be given in writing, addressed to the president of the society at New York, stating the full name, occupation, and address of the injured member, with full particulars of the accident and injury, and failure to give such written notice within ten days from the date of either injury or death shall invalidate any and all claims under this certificate.’

There is nothing in the case to create any doubt as to the fact that the insured was killed on the day of the accident, but the fact was not known until the 25th, when the body was found among the ruins, and identified. Notice of the death was given to the defendant on the 2d day of September, which was within the 10 days from the discovery of the body, but not within 10 days from the day of the accident, when, as the defendant insists, the death must have occurred. The condition upon which the defense is based was to operate upon the contract of insurance only subsequent to the fact of a loss. It must therefore receive a liberal and reasonable construction in favor of the beneficiaries under the contract. McNally v. Insurance Co., 137 N. Y. 389, 33 N. E. Rep. 475. The provision requires not only notice of the death, but ‘full particulars of the accident and injury.’ It is quite conceivable that in many cases of death by accident the fact cannot be, and is not, known until days, or even weeks, after it has occurred. Such conditions is a policy of insurance must be considered as inserted for some reasonable and practical purpose, and not with a view of defeating a recovery in case of loss by requiring the parties interested to do something manifestly impossible. The object of the notice was to enable the defendant, within a reasonable time after the death or injury, to inquire into all the facts and circumstances while they were fresh in the memory of witnesses, in order to determine whether it was liable, or not, upon its contract. The full particulars of the death, which the condition requires, cannot, ordinarily, be furnished until the fact of death, and the manner in which it occurred, are ascertained. In this case, all that was known prior to the 25th of August, when the body was found, was the fact that the deceased had his place of business in the building, and that it had been destroyed. But it did not follow from these facts that the insured was dead, as he might have been absent from the building at the time, or in some way escaped from the result of the accident; and a notice served upon the defendant prior to the time when the body was found, and the fact of death ascertained, would not be within the object or terms of the condition. The parties having contracted that the...