
    Martin v. Equitable Acc. Ass'n.
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1891.)
    L Accident Insurance—Cause oe Death.
    Plaintiff sued on a policy of accident insurance issued to her deceased husband. The policy was payable in case of death through accidental means which were the proximate and sole cause, and not where death was caused wholly or in part by bodily infirmity or disease. The evidence showed that death was caused by blood-poisoning occasioned by the inoculation of some poisonous substance into a wound at or very soon after the wound was made. Meld, that where the inoculation occurred at the time the wound was made, and was a part of the accident, such accident was the sole and proximate cause of the death, though blood-poisoning ensued.
    3. Same—Question for Jury.
    The question whether the death ensued from injuries covered by the provisions of the policy was for the jury to determine. Martin v. Indemnity Co., (Sup.) 15 N. Y. Supp. 309, followed.
    8. Same—Action on Policy—Pleading.
    An allegation in the complaint that an assessment under the articles of incorporation and by-laws of defendant at the time of the death, and for a long time thereafter, far exceeded the sum named in the policy, referred to an assessment such as the policy called for, and evidence was admissible to show what an assessment under the policy would amount to.
    4. Same—Notice of Death.
    Where the policy required notice of the death to be given defendant within five days thereafter, a failure to give such notice would work a forfeiture, unless defendant waived the notice.
    5. Same—Waiver—Question for Jury.
    Where there was evidence of a waiver of such notice, upon which evidence defendant was entitled to go to the jury had a request been made, as defendant failed to make such request after its attention was called to it, there is no ground to complain of the court’s decision of the question.
    Appeal from circuit court, Broome county.
    Action by Eliza A. Martin against the Equitable Accident Association of Binghamton to recover on a policy insuring her husband against death by accident. Verdict and judgment for plaintiff. Defendant moved for a new trial, which was denied, and from the judgment and order denying the motion, it appeals.
    Keversed, and new trial ordered.
    
      Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      David Murray, for appellant. Carver, Deyo & Jenkins, for respondent.
   Merwin, J.

This action is brought upon a certificate of membership issued by the defendant on the 23d November, 1883, to William A. Martin, the husband of the plaintiff, agreeing to pay to the plaintiff the principal sum, not exceeding $5,000, realized upon an assessment in accordance with the bylaws of the defendant, within 60 days after due and satisfactory proof that the member, at any time during the continuance of the membership, shall have sustained bodily injuries, effected through external, violent, and accidental means, within the intent and meaning of the contract and the conditions thereunto annexed, and such injuries alone shall have occasioned death within SO days from the happening thereof. One of the conditions referred to was that the benefits under the certificate should not extend to any bodily injury happening, directly or indirectly, in consequence of any disease, nor to any death or disability which may have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of the certificate, nor to any case except where the injury is the proximate and sole cause of the disability or death. Another of the conditions was that immediate notice of the injury should be given to the defendant in writing, and that failure to give such notice within five days from the happening of the accident should invalidate all claim under the certificate. It was alleged in the complaint that on the 27th April, 1889, William A. Martin accidentally cut or wounded a finger on his right band, and that some substance was at or about the same time, either from the instrument that made the cut or wound, or from some other source or manner unknown to plaintiff, accidentally communicated to the cut or wound, and blood-poisoning ensued, and the assured died from said injury or injuries on the 10th May, 1889, and that said death was occasioned alone by said accidental injury or injuries. The defendant in its answer claimed that the death was due to disease, and that written notice of the injury had not been given as required by the conditions of the certificate.

At the trial evidence was given by the plaintiff tending to substantiate the allegations of the complaint, and that the written notice of the injury had been waived by the defendant. It also appeared that on the 8th April, 1889, Martin had accidentally received an injury upon the thumb of the left hand; had badly bruised it; that the thumb became quite swollen; was lanced about 10 days,or two weeks after the injury; that after it was lanced it continued to suppurate up to the time of the second injury; and that virus from this sore upon the thumb may have been in some way communicated to the second injury at or about the time of its occurrence, and produced the blood-poisoning. How the second injury happened, is not shown by direct evidence. A piece of flesh about the size of a pea was taken from the finger, and there is evidence leading towards the inference that this was torn out in the use by Mr. Martin of an umbrella that he had been accustomed to use during the existence of the sore on his other hand. At the close of the evidence the court held, as matter of law, that the plaintiff could recover, though'the death was caused by blood-poisoning caused by the pus from the first wound, and that the only question for submission to the j ury was in relation to the waiver of the condition of written notice. Upon the latter question, as the defendant did not ask to go to the jury upon it, the court also held upon that in far var of the plaintiff, and directed a verdict for the amount claimed. The appellant claims (1) that the assured came to his death from a disease known as “blood-poisoning, ” contracted by or through contact of the sore on the right hand with diseased matter - from the sore on the thumb of the left hand, and that it was error to direct a verdict for the plaintiff; (2) that there is no evidence from which waiver of notice can be held as matter of law or at all; (3) that the court erred in admitting evidence of the amount of an assessment.

Upon the last proposition, the defendant claims that the allegation in the complaint was not broad enough to admit the evidence. The allegation was “that an assessment under the articles of incorporation and by-laws of said defendant, at the time of the death of said assured and for a long time thereafter, far exceeded the said sum of $5,000. ” This evidently referred to an assessment such as the certificate or policy in question called for, and, under it* it was competent to show what an assessment under the provisions of the policy would have amounted to.

The rule upon the subject of waiver has been quite definitely settled by the court of appeals. The failure to give written notice would result in a forfeiture. In regard to such a case, it is said, in Titus v. Insurance Co., 81 N. Y. 419, that “it may be asserted broadly that if, in any negotiations or transactions with the insured, after knowledge of the forfeiture, it [the company) recognizes the continued validity of the policy, or does acts, based thereon, requiring the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is, as matter of law, waived; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel.” This principle was followed in Roby v. Insurance Co., 120 N. Y. 510, 24 N. E. Rep. 808.

There was evidence in the present case sufficient to warrant a finding of waiver under the rule as above laid down. Very likely, upon this subject* the defendant would have had the right to go to the jury, had it been requested ; but, as no such request was made when the attention of counsel was called to it, the defendant cannot complain that the court decided it. Upon the other issues, did the court err in ordering a verdict for the plaintiff?

The evidence showed that the death was produced by blood-poisoning, and that this was occasioned by the inoculation into the wound of some poisonous substance at or very soon after the wound was made. If the inoculation occurred at the time the wound was made, so that it was in fact a part of the accident, I see no good reason why the death might not be attributed to the-accident as the sole and proximate cause, although blood-poisoning ensued. The latter would be produced by the accident, and within the distinction recognized by Judge Peckham in Bacon v. Association, 128 N. Y. 308, 25 N. E. Rep. 399. Whether, as a result from the first injury, the plaintiff might not have a cause of action therefor is not involved here, as no such cause of action is alleged in the complaint.

In Martin v. Indemnity Co., (Sup.) 15 N. Y. Supp. 309, which was an action brought by the same plaintiff as in the present case upon a similar certificate issued by another company, and having reference to the same accident and death, it was held by this court that the question whether the death ensued from injuries covered by the provisions of the policy was for the jury to determine. The evidence in that ease on the subject was substantially as here. Following that case, it became here a question of fact for the jury to determine whether the injury complained of was within the terms of the policy, and was the proximate and sole cause of the death. This involved the question whether the death was caused wholly or in part by any disease, within the meaning of the policy. We think the case should have been submitted to the jury, and that a new trial should be granted. Judgment and order reversed, and new trial ordered, costs to abide the event. All concur.  