Wehle v. . U.S. Mut. Accident Assn. , 153 N.Y. 116 ( 1897 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It is our judgment that the order of the General Term was correct, in ordering the verdict directed by the trial court to be set aside, and that a new trial should be had. The decision of the case at the trial turned upon the one question, whether the plaintiffs had shown themselves entitled to recover the amount of the insurance claimed, by reason of the death of their testator within the operation of the policy, which provided for a liability in the event of death resulting from personal bodily injuries, through external, violent and accidental means. The plaintiffs were entitled to have the jury say whether the deceased died from the action of the water; in which case, as that would be a death from external violence within the meaning of the policy, they would be entitled to a verdict. (112 N.Y. 472; 6 Hurls. Norm. 845.) One of the issues raised by the pleadings was as to the cause of the death, and upon that question the jury should have been permitted to pass. The view of the trial judge, however, was, that an express provision of the insurance contract had not been complied with by the plaintiffs. That provision was the one which permitted the medical adviser of the defendant to examine the person or body of the insured, in respect to any alleged injury or cause of death. As there was no post-mortem examination on the part of the representatives of the insured, the balance of that provision need not be considered. The provision as to the examination of the person or body of the insured was not only expressly assented to by the insured, when he made application for the insurance, and, therefore, should be given effect as his express agreement, but it was a reasonable provision and quite necessary in accident insurance, as affording a protection against fraud. Its meaning is that, in case of an injury, or of a death, the defendant shall be authorized, through its medical adviser, to make an examination, either of the person with respect to the alleged injury, or of the body, to ascertain the cause of the death, as the case might be. It was the agreement between the insurer and the insured that there should be a strict compliance with the provisions and conditions of the policy, and, accordingly, the plaintiffs did give the immediate notice, which was one of the conditions, and that fact was not only admitted by the answer, but, being stated in open court and with the president of the defendant upon the witness stand, received no contradiction. The effect of the giving of immediate notice was to impose upon the defendant the obligation immediately to make such investigation of the occurrence, as to enable it to decide whether to insist upon its right to an examination of the body in order to satisfy itself as to the cause of the death. It was not at liberty to wait indefinitely, or for any unreasonable length of time. The provision, though not, as before observed, of an unreasonable nature, nevertheless was one which, in the nature of things, called for prompt action on the part of the insurer. Although no time is specified within which the permission to examine may be availed of, still, a due regard for the sentiments of the family and friends of the deceased, if not public policy, required as immediate an exercise of the option to examine as was possible. Conditions in insurance policies, as in all other contracts, should be construed strictly against those for whose benefit they were reserved. (Paul v. Travelers' Ins. Co., 112 N.Y. 472.) It was an unreasonable delay on the part of the insurer to wait until after the body of the deceased had been interred, and nothing appears in the evidence to show any excuse for it, if it was deemed that an examination of the body was necessary. From September 4th until September 9th an opportunity was afforded for an examination of the body, and, in the absence of evidence to the contrary, we must assume that the immediate notice conceded to have been given of the death left an ample margin of time for such an examination. We do not think that there was any ambiguity with respect to the permission to examine the person or body of the insured, and if it should appear in any case that at some subsequent date, after the interment of the body, circumstances or facts coming to the knowledge of the insurer warranted a reasonable belief that death was occasioned by means or causes excepted from the contract of insurance, a reasonable construction of this provision would authorize the insurer to insist upon an exhumation of the body and upon a dissection of it. But in this case there was nothing in the evidence to show that the defendant had reason to believe in the existence of any excepted cause of death. In fact, the proofs of an accidental death from drowning were such that a verdict to the contrary could not be said to have been justified.

We hold, in this case, that the provision authorizing an examination of the body of the insured should have been availed of immediately upon the receipt of the notice of the death, which was conceded to have been immediately given, and that the delay in the demand for an examination of the body was, as matter of law, so unreasonable, in the absence of any facts or circumstances excusing it, as to deprive the defendant of any defense to the action upon that ground.

Inasmuch as it does not appear that an examination of the body was denied to the association, it is immaterial to consider the question as to whether the demand for it was made upon the proper person. The permission was, in fact, given by the insured himself through the insurance contract, and, if it had been attempted to be availed of with the result of an opposition on the part of those having a legal right to make it, the question would then be open for consideration, whether it was such as to have brought about a forfeiture of the policy.

For these reasons, the order of the General Term appealed from should be affirmed and judgment absolute should be ordered in favor of the plaintiffs and against the defendant corporation and its receiver, with costs.

All concur, except VANN, J., not sitting.

Order affirmed and judgment accordingly.