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609, 139 N. W. 355; Zeitler v. National Travelers’ Ins. Co. 106 Fed. 822; Patterson Casualty Co. 124 Minn. 478, 145 N. W. 395. v. Ocean Acci. & Guarantee Corp. 25 App.

The claim auditor was a proper person to D. C. 46; Loesch v. United Casualty & S. call for cross-examination under the statute. Co. 176 Mo. 654, 75 S. W. 621; Ewing v.

Bennett v. E. W. Backus Lumber Co. 77 | Commercial Travelers' Mut. Acci. Asso. 170 Minn, 198, 79 N. W. 682; Ames-Brooks Co. | N. Y. 590, 63 N. E. 1116; Root v. London v. Ætna Ins. Co. 83 Minn. 346, 86 N. W. Guarantee & Acci. Co. 180 N. Y. 527, 72 N. 344; Leystrom v. Ada, 110 Minn. 340, 125 E. 1150; Crotty v. Continental Casualty Co. N. W. 507.

163 Mo. App. 628, 146 S. W. 833. The demand of the defendant to hold an autopsy, relied upon as its defense, was not Hallam, J., delivered the opinion of the made by it as agreed upon by the policy, court: nor was the demand which was proven made A. L. Swenson held a policy of accident at a reasonable or proper time, or as agreed insurance issued by defendant, covering upon by the policy.

death from accidental injury, and payable Cook v. Modern Brotherhood, 114 Minn. in case of his death to his estate. On June 299, 131 N. W. 334; Rudd v. Great Eastern 15, 1913, Swenson was visiting with a rela. Casualty & I. Co. 114 Minn. 512, 34 L.R.A. tive, Peter Holm, on a farm situated on (N.S.) 1205, 131 N. W. 633, Ann. Cas. Sand lake, a small lake near New Scandia, 1912C, 606; American Employers' Liability in Washington county. He dressed himself Ins. Co. v. Barr, 16 C. C. A. 51, 32 U. S. in a bathing suit, took a rowboat, went a App. 444, 68 Fed. 873; Wehle v. United short distance out upon the lake, and dove States Mut. Acci. Asso. 153 N. Y. 116, 60 head first into the water. He came up once, Am. St. Rep. 598, 47 N. E. 35; Sudduth v. I appeared to struggle, and then sank and claims under the policy should be forfeited., cal examiner present, then all claims under The company claimed a forfeiture because the policy shall be forfeited, a post mortem the beneficiary, at the request of insured's which occurred without knowledge or conphysician, permitted a post mortem of sent of beneficiaries would be no defense which no notice was given to the company. on the ground of lack of notice. Loesch v. The court, while it said that it is a rea. Union Casualty & S. Co. supra. sonable requirement under reasonable inter- Failure to notify an insurance company pretation, and a violation of its terms under of an autopsy to be held to ascertain the circumstances reasonably showing disadvan cause of death will not, in an action on the tage to the company would work a forfei- policy, affect the competency as evidence of ture of the policy, yet held that failure to facts adduced thereat, where there is no give notice did not work forfeiture in this provision of law or of the insurance concase, as no disadvantage to the company tract that the company should be notified was indicated, the evidence showing that it when a post mortem examination is to be was very doubtful if the beneficiary was held. Sun Acci. Asso. v. Olson, 59 Ill. App. responsible for the act, as she testified that 217. she did not know what post mortem meant, and did not know what the physicians were doing. And further, and which was the Right to examine body as including "aureal ground of the decision, that as soon as

topsy” and “exhumation.” the attending physician saw the policy and read the clause, which was immediately That the right of the insurer to "exafter the post mortem, he went to the office amine” body of insured, conferred by an of the company and told them what had accident policy, did not include the right been done, and offered to allow them to to make an autopsy or to dissect, was held make a re-examination, and there was no in Sudduth v. Travelers’ Ins. Co. 106 Fed. suggestion in the record of any factor 822. The court said that it did not “think theory which would tend to show that a that any ordinary person, in agreeing to re-examination of the body at that time the stipulation for an examination of the would not have disclosed to the company's insured before or after death, would supphysicians everything which the first ex- pose he was agreeing to what would have amination disclosed to the physicians who been much more clearly expressed by the made it.

word ‘autopsy' or by the word “dissect. I It cannot be said that there is a failure do not think that one would ordinarily supto comply with the provisions of an acci pose that the word 'examine,' as applied to dent policy with reference to notice of the human body, either living or dead, autopsy where the company's agent was in would, ex vi termini, include, or by an informed of an intended autopsy by physi- sured, at least, would be supposed to incians engaged by the beneficiary to perform clude, the idea of cutting it up. The word it. Legnard v. Standard Life & Acci. Ins. 'examine' may not definitely express the Co. 81 App. Div. 320, 81 N. Y. Supp. 516. same idea to every person who sees it or

l'nder a provision of an accident policy who uses it, but it is quite clear to me that if a post mortem be held without noti- that it does not, in the clause of the confying the company in time to have its medi-'tract we are considering, include the idea

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was seen no more alive. Next day the body, tiff, who was the local agent of the defendwas recovered. There were some bruises on ant at New Scandia, and at 5:25 P. M. took the face which the evidence shows must a train for Copas, the nearest railway point have been caused before death. There is to New Scandia. He arrived at Copas at abundant evidence of accidental drowning; 6:53 and at New Scandia at 7:30. He was in fact, the evidence would not sustain any then within 2 miles of the Holm farm, other conclusion. There is some evidence where deceased met his death, and where that deceased had suffered from heart trou- the body of deceased then was, and where ble, but no substantial evidence that he died the widow of deceased then was. Drennan from any such ailment. The defenses urged spent the evening at New Scandia making are as follows:

investigations. About 10 A. M. the next The policy provided that "the company day he was driven in an automobile to the shall in no event be liable

in any Holm residence. The funeral was set for case where any medical adviser appointed 1 P. M. Numerous friends and relatives by it shall have been denied the right or from a distance had already gathered to opportunity of making a personal examina- attend the funeral, and more were expected tion, or of holding an autopsy in case of on an 11 o'clock train. In this situation death."

and at 10:18 A. M. Drennan sought out Mrs. It is claimed that the right to an autopsy Magney, the mother of the widow of dewas denied. The facts as to this are as fol. ceased, and, as he himself testified, made lows: C. E. Drennan, claim auditor of de the following demand: “The substance of it fendant, learned of the death of deceased was that under our policy we had the right about 11 A. M. of June 17th. He was then of performing an autopsy in case of death, at Minneapolis. He telephoned this plain and that as a representative of the company either of an 'autopsy' or of a dissection,', for it to express it in language in no way if there is any essential difference between ambiguous or doubtful, or which, in order to those two words in this connection. “Au- effect the company's purpose, would have topsy' is defined to be an examination of to be extended beyond its ordinary import." a dead body by dissection. 'Dissection' is So also it was held in Patterson v. Ocean the cutting apart of a dead body, or the Acci. & Gurarantee Corp. 25 App. D. C. 46 cutting of it into pieces. Can it reasonably (action on insurance policy insuring against be supposed that it was in the contempla- "accidental bodily injury caused solely by tion of both of the parties to these con- external, violent, and visible means”), that tracts at the time they were made that the the right to "examine” the body of insured meaning of the word 'examine' in its con- does not include the right of autopsy or distext was to be so expanded as to include section, much less exhumation. either the idea of an autopsy or the idea But there is an obiter statement in Wehle of a dissection? While an autopsy, speak- v. United States Mut. Acci, Asso. 153 N. Y. ing generally, always includes an examina- 116, 60 Am. St. Rep. 598, 47 N. E. 35, that tion, can it be said that an examination if it should appear in any case that at some always includes an autopsy? or can it be subsequent date after the interment of a fairly held that the simple word 'examine,' body circumstances or facts coming to the as used in the policies sued on, would be knowledge of the insurer warranted a reaaccurately defined in the same words as sonable belief that death was occasioned by those used to define either 'autopsy' or 'dis- means or causes excepted from the contract, section,' when endeavoring to arrive at the a reasonable construction of such provision mutual agreement of the parties at the would authorize the insurer to insist upon time they were contracting? It seems to an exhumation of the body and upon a disme not; particularly when construing poli- section. cies for insurance against death from external causes only, and which ordinarily

Bill of discovery. would only involve or require external inspection. If the company desired or ex- Under a policy insuring against death pected the insured to agree to a condition from accident, and providing that the insursuch as either of these words would have er shall have the right to make an autopsy, clearly indicated, there is no obvious reason a court of equity has jurisdiction to'euterwhy it should not have been expressed in tain a bill of discovery, and appoint a replain terms. If there is a fair doubt as to ceiver to take charge of the organs of the the meaning of the words used in a policy, deceased insured pending examination as to it should be solved in favor of the insured, cause of death, when demand of autopsy because there appears to have been no rea- is refused, the court holding that under its son why the plainest words could not have contract the insurer had a right to make an been employed by the company in framing examination of the organs superior to any the condition. It may be that the right to property right in any member of the family dissect a body, even after burial, is or would of the assured. Painter v. United States be an important right to the company; but Fidelity & G. Co. 123 Md. 301, 91 Atl. 158. that would make it all the more necessary

J. H. B.

I wished to have that right in order to de, made within a reasonable time after death. termine the cause of death and see whether Wehle v. United States Mut. Acci. Asso. there was anything due them under the pol. 153 N. Y. 116, 60 Am. St. Rep. 598, 47 N. icy or not.”

E. 35; Ewing v. Commercial Travelers' Mut. Mrs. Magney communicated the demand to Acci. Asso. 55 App. Div. 241, 66 N. Y. Supp. the widow of deceased. The demand was 1056; Root v. London Guarantee & Acci. refused. Drennan testified that the reason Co. 92 App. Div. 578, 86 N. Y. Supp. 1055; given was “they said they thought it was American Employers' Liability Ins. Co. v. too close the time of the funeral.”

Barr, 16 C. C. A. 51, 32 U. S. App. 444, Plaintiff does not question the validity of 68 Fed. 873; Cooley, Briefs on Ins. 3449 this provision in the policy which gave de (g). In Wehle v. United States Mut. Acci. fendant a right to demand an autopsy, and, Asso. supra, it was said: “Although no if the demand for an autopsy was properly time is specified within which the permismade, its refusal defeats any right of ac- sion to examine may be availed of, still, a tion on the policy. The question is as to due regard for the sentiments of the family the sufficiency of the demand.

and friends of the deceased, if not public The demand was made upon the proper policy, required as immediate an exercise person. The widow of deceased was the of the option to examine as was possible.” sole beneficiary under the policy and she On similar principle, we think it must alhad control of the body of deceased. Larson so be held that such a demand, to be effecv. Chase, 47 Minn. 307, 14 L.R.A. 85, 28 tive, must be made at a reasonable time and Am. St. Rep. 370, 50 V. W. 238; Lindh v.

upon a proper occasion. We are of the opinGreat Northern R. Co. 99 Minn. 408, 7 | ion that demand made in this case was not L.R.A. (N.S.) 1018, 109 N. W. 823. She made at a reasonable time or upon a propalone had the right to say whether or not er occasion. an autopsy should be held. It was proper We think the natural purport of the dethat the demand be addressed to her. mand was for an autopsy to be held at once.

It was proper also to communicate the de- | The language of the demand would natural. mand to her through her mother. It was ly be so understood, and it evidently was so not necessary that demand be made upon understood by all parties. The reason givher in person.

A decent respect for the en for its refusal is indicative of this. It proprieties of the occasion made it pecul. is suggested now that the widow might iarly proper that defendant communicate understand the demand as one for an authrough someone who could better approach topsy after the funeral obsequies had taken her with a matter of serious business than place but defendant's representative made could a stranger.

no suggestion of this sort, even when the We are of the opinion, however, that the ground given for refusal of the demand was time and circumstances of the demand were that it was too close to the time of the such that its refusal did not operate to de- funeral. One in the situation of the widow feat plaintiff's right of action. We must of deceased is not to be expected to make bear in mind that, except for some formal counter propositions or suggestions, or to requirements, and except for the chance construe language used in such a demand that the autopsy would develop facts of in any but its plain and obvious meaning. which we have no knowledge, the right of When an insurance company feels called upaction upon this policy had fully accrued. on to serve a notice upon a widow between The forfeiture of a right of action through the time of the death and burial of her the operation of a condition subsequent will husband, and when the character of the be enforced only where the right to such notice is such that her conduct in reference forfeiture is plain. 25 Cyc. 821. The right thereto may result in the forfeiture of into an autopsy given by this provision of the surance money, the right to which has al. policy was one calculated under the most ready accrued, the language of the notice favorable circumstances to cause some dis should leave nothing to intendment, and tress of mind to the family of deceased, and should be free from doubt or ambiguity. although no time was fixed when the exer. We construe the demand made by the claim cise of the right might be demanded, a due auditor as a present demand, calling for zegard for the sensibilities of the survivors present compliance or refusal. clearly requires that there should be some Now, the examination which defendant limitation as to the time and occasion of had a right to demand was for an examinasuch a demand. We are cited to no decided tion by a “medical adviser appointed by it.” case involving a state of facts just like the We should not consider that it was necescase at bar. There are many cases, how- sary that the medical adviser make the deever, which hold in general terms that a mand in person, if one were appointed and demand for an autopsy, under a policy con- at hand for the purpose of performing the taining provisions similar to this, must be' autopsy. But clearly a demand made by a

V.

rates.

claim auditor, with no "medical adviser” at, 438; Canadian R. Acci. Ins. Co. v. Haines, hand, could avail nothing. This claim audi- 44 Can. S. C. 386, 21 Ann. Cas. 916; Fisher tor was not a physician, and he had no v. Travelers’ Ins. Co. 124 Tenn. 450, 511, physician with him. His testimony is that 138 S. W. 316, Ann. Cas. 1912D, 1246. he had in mind one of the company's doc- It is contended the court erred in pertors located in Minneapolis, and who was in mitting plaintiff to call Mr. Drennan for Minneapolis at that time. The autopsy cross-examination under the statute. The must await his coming. The claim auditor party calling him did not seek to avoid his testified that the autopsy could have been testimony, and the form of the questions held before the time set for the funeral, propounded would have been proper if the but the evidence is conclusive that it could witness had not been called for cross-exnot. Compliance with his demand would amination. No reversible error can therehave caused a delay in the funeral obsequies, fore be predicated upon the ruling. Ley. the extent of which we have no means to strom v. Ada, 110 Minn. 340, 125 N. 11. determine. There was no reason why the 507. demand could not have been made several Order affirmed. hours earlier, if not the day before. The claim auditor had learned of the death of deceased nearly twenty-four hours before.

NEBRASKA SUPREME COURT. From the early evening before, and for nearly fifteen hours, he had been within ten YcCOOK IRRIGATION & WATER POWminutes' ride of the place where the body

ER COMPANY lay and where the widow and her near relatives were. Yet he deferred his visit

PAULINE BURTLESS et al., Appts. and his demand until the eleventh hour, and presented his demand under circumstances (- Neb. -, P. U. R. 1915C, 587, 152 N. which must inflict upon the widow, not only

W. 334.) the distressing experience of an autopsy upon the body of her husband, but the har. Irrigation company regulation of rowing ordeal of a suspension of the funeral as well. The policy should not be construed carrier" of water to a limited degree, and

1. An irrigation company is a “common as giving the defendant the right to demand

its rates and charges are subject to regulaan autopsy under such conditions. The tion and control. undisputed facts fail to sustain this ground Public service corporation regulation of defense, and it is accordingly unnecessary of rates - jurisdiction. to consider the propriety of the instructions 2. Jurisdiction to inquire into the reasonto the jury on this subject.

ableness of water rates and to regulate and The policy contained a provision that fix the same has, by the Constitution and "no claim shall be valid unless written statutes, been conferred upon the State notice thereof shall be given the company

Railway Commission.

company contract within twenty days from the date Irrigation

for of death unless such notice may

control.

3. Contracts between an irrigation combe shown not to have been reasonably pos. pany and water users under its ditch, prosible.”

viding for the use of water and for the Notice of claim was made July 11th, more maintenance of the ditch, are entered into than twenty days after death. This failure with the law as to the right of the state to to give notice of claim within the time pre- regulate rates forming a part of the conscribed in the policy is now asserted as a tract, and such rates are subject to control. defense. There are several reasons why this Public service corporation property defense is not available. We need mention rights - jurisdiction. but one. On July 21st, defendant replied to

4. The Railway Commission is not vested the notice given denying liability on the with jurisdiction to settle disputed proppolicy on the express ground that "the right erty rights as to the ownership of an irriwhich we have of holding an autopsy in case

gation canal. of death was denied us on June 18th.” The

(April 3, 1915.) denial of all liability on this ground alone was a waiver of the objection that notice

Headnotes by LETTON, J. was not given in time. 1 C. J. 480; Levine v. Lancashire Ins. Co. 66 Minn, 138, 146, 68 Note.

State regulation of rates of irri. N. W. 855; Butler Bros. v. American Fi.

gation com pany. delity Co. 120 Minn. 157, 44 L.R.A.(N.S.) 609, 139 N. W. 355; Taylor-Baldwin Co. note on the same question appended to Salt

The present note is supplementary to a v. Northwestern F. & M. Ins. Co. 18 N. D. River Valley Canal Co. v. Nelssen, 12 L.R.A. 343, 122 N. W. 396, 20 Ann, Cas. 432, note' (N.S.) 711.

rates

A

PPEAL by respondents from an order of 479, 131 N. W. 1038; 2 Wyman, Public

the Nebraska State Railway Commis- Service Corp. note 1, § 1121, p. 998; 4 Mesion granting complainant authority to Quillin, Mun. Corp. § 1725, p. 3688; Concharge respondents an annual maintenance don v. New Rochelle Water Co. 136 App. fee of $2 per acre for water furnished to Div. 897, 120 N. Y. Supp. 1119, affirming them. Affirmed.

116 N. Y. Supp. 142; Pond v. New Rochelle The facts are stated in the opinion. Water Co. 183 N. Y. 330, 1 L.R.A.(N.S.) Mr. W. S. Morlan, for appellants: 958, 76 N. E. 211, 5 Ann. Cas. 504.

The burden of maintaining the canal is The ditch company did not make a suffion the ditch company by contract and law. cient statement to give its complaint con

Farmers' & M. Irrig. Co. v. Hill, 90 Neb. sideration. 847, 39 L.R.A.(N.S.) 798, 134 N. W. 929, McCook Waterworks Co. v. McCook, 85 Ann. Cas. 1913B, 524; 2 Wiel, Water Neb. 677, 124 N. W. 100; State v. Adams Rights, 2d ed. § 1501, p. 2700.

Exp. Co. 85 Neb. 25, 42 L.R.A. (N.S.) 396, The Commission should not entertain a 122 N. W. 691. complaint made by the ditch company of The people have not granted the Commisits own rate.

sion power to create obligations, amend conFenton v. Tri-State Land Co. 89 Neb. 'tracts, or make up the promoters' losses in

In Green v. Jones, 22 Idaho, 560, 126 Pac. , Co. v. Stanislaus County, 155 Cal. 21, 99 1051, the question involved was whether, Pac. 365, that where more than a year had under the statute, a water rate fixed by a elapsed after the fixing of the water rates, board of county commissioners, and sus- an irrigation company must first apply to tained by the courts, remained in force un- the board of supervisors for re-establishtil a new rate was fixed. The statute pro- ment of rates which it claimed were unvided that the commissioners, after hearing, reasonable, before it could apply for relief should fix a reasonable maximum rate for to a court of equity. The statute authorwater delivered from irrigation ditches, izes boards of supervisors in the different which rate should not be changed within counties to fix water rates so that the net one year; also that at the January session annual receipts to the water companies and at such other sessions as they deemed shall not be less than 6 nor more than 18 proper, the board should hear applications per cent upon the value of their property, by any party interested in delivering water and provides that the rates so fixed shall for irrigation or by parties consuming the be binding and conclusive for not less than water, the applications to be supported by one year after their establishment, and affidavits showing reasonable cause for the until established anew or abrogated; that board to proceed to fix a maximum rate of at any time after the establishment of the compensation for water delivered from irri- rates they may be established anew gation ditches. In 1901 a maximum rate abrogated, the re-establishment or abrowas established by a board of county com- gation to take effect not less than one year missioners, and sustained by the courts; after the first establishment, and that the in 1903 the irrigation company petitioned board may, subject to the above limitation the board to establish a new rate, on the of one year, abrogate existing rates and ground that the old rate was too low; the establish other rates on the petition of conboard entered an order fixing the same rate sumers or of the irrigation company. as had been fixed by the order of 1901, but Under the California statute authorizing the order of 1903 was set aside by the and requiring the boards of supervisors of courts on the ground that the rate estab. the various counties to fix rates for irrigalished was unreasonably low and would | tion companies so that the return shall not amount to a confiscation of the company's be less than 6 nor more than 18 per cent property without due process of law; no upon the value of the "canals, ditches, further application was made to the board flumes, chutes, and all other property acfor the fixing of any other rate. It was tually used and useful to the appropriation held that the rate fixed by the order of and furnishing of such water," the rule was 1901 remained in force, and that the com- laid down in San Joaquin & K. River pany could not compel consumers to pay a Canal & Irrig. Co. v. Stanislaus County, higher rate stipulated in a contract which 191 Fed. 875, that, in determining the value the consumers had been compelled to sign of an irrigation plant on which at least 6 to procure water during the pendency of per cent must be allowed, the cost of reprothe appeal from the second order of the duction of the plant should be determined board.

as of the date of the use in question, and What is a reasonable charge for irriga- that from this cost the depreciation that tion under a statute providing that such had occurred from age and usage should be charges shall be reasonable has been deducted; also that the irrigation company said to depend largely on the cost of con- was not entitled to have the water right structing and operating the irrigation valued in determining the value of the works. Young v. Hinderlider, 15 N. M. 666, plant, upon which it was entitled to at 110 Pac. 1045.

least 6 per cent interest. On appeal, howUnder the California statute it was held ever, in 233 U. S. 454, 58 L. ed. 1041, 34 in San Joaquin & K. River Canal & Irrig. 'Sup. Ct. Rep. 652, it was held by the Fed

or

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