
    Eliza A. Martin, Resp’t, v. The Equitable Accident Association of Binghamton, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November 21, 1891.)
    
    1. Insurance (accident)—Evidence as to amount of assessment.
    An allegation in a complaint " 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,” is sufficient to authorize proof of what an assessment under the provisions of the policy in question would have amounted to
    2. Same—Waiver.
    A forfeiture by reason of failure to give written notice of the accident is waived where the company, with knowledge of such forfeiture, recognizes the continued validity of the policy by requiring the insured to do acts based thereon.
    3. Same.
    The assured injured a finger of his right hand, and the evidence showed that he died from the effects of blood poisoning occasioned by the inoculation into the wound of some poisonous substance at or very soon after the injury. Held, that it was a question of fact for the jury whether the injury was within the terms of the policy and was the proximate cause of the death.
    Appeal from a judgment entered in Broome county June 1, 1891, upon a verdict in favor of the plaintiff for §5,512.50, directed by the court at the Broome circuit, May, 1891; also from an order denying a motion for a new trial upon the minutes.
    
      David Murray, for app’lt; Carver, Deyo & Jenkins, for resp’t.
   Merwin, J.

This action is brought upon a certificate of membership, issued, by the defendant on the 23rd 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 by-laws of the defendant, within sixty 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 ninety 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 hand 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 ten 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 toward 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 bis 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 jury 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 favor 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. Glens Falls Ins. 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 exposure, 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. A. C. Ins. Co., 120 N. Y., 510; 31 St. Rep., 560. 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 tne distinction recognized by Judge Peckham in Bacon v. U. S. M. A. Ass’n, 123 N. Y., 308; 33 St. Rep., 591. 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. Manufacturers' Accident Ins. Co., 40 St. Rep., 17, 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 case 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 fil 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. ,

Hardin, P. J., and Martin, J., concur.  