ELIZA G. TRAISER v. COMMERCIAL TRAVELLERS' EASTERN ACCIDENT ASSOCIATION.

Sheldon, J. The defendant's agreement, as stated in the certificate of insurance, was that it would pay the stipulated amount to the beneficiary appointed under the certificate within ninety days from the receipt by its board of directors "of proof satisfactory to said board of the death of" John Gourley, "and that his death has been caused wholly and entirely by external, violent, and accidental means." Its liability accordingly did not arise until the presentation of such proof to its board, not only of the death but also of the fact that the cause of the death was that mentioned in this stipulation. Hatch v. United States Casualty Co. 197 Mass. 101. Union Institution for Savings v. Phoenix Ins. Co. 196 Mass. 230, 236. North American Ins. Co. v. Burroughs, 69 Penn. St. 43. In this respect the case differs from many of those relied on by the plaintiff, in which proof only of the death was called for, without such an additional requirement as is made here. Flynn v. Massachusetts Benefit Association, 152 Mass. 288. Taylor v. AEtna Ins. Co. 13 Gray 434. Bowen v. National Life Association, 63 Conn. 460. Insurance Co. v. Rodel, 95 U. S. 232.

It appeared at the trial that the plaintiff had furnished to the defendant, in accordance with this condition of the policy,

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certain proof which included, among other sworn statements, her own affidavit and that of one Johnston, the physician who had attended the deceased member after the accident which it was claimed caused his death. The defendant then sent to the plaintiff some additional questions which it asked to have answered by Dr. Johnston. The plaintiff without objection procured through her then attorney an affidavit from Dr. Johnston, answering those questions in detail, and transmitted it to the defendant. By this affidavit it appeared that a Dr. Canfield had been the regular physician of Gourley, and had seen him just before his death. The defendant thereupon sent to the plaintiff's then attorney a list of questions to be answered under oath by Dr. Canfield, and the attorney procured and sent to the defendant an affidavit from Dr. Canfield, answering those questions. The defendant's board of directors, treating these three sets of papers as the proof furnished by the plaintiff, rejected her claim; and this action was then brought by her to recover upon the policy.

The presiding judge at the trial ruled, at the request of the plaintiff, that the affidavits first furnished to the defendant by the plaintiff constituted the proof which she was required to furnish, and that the subsequent affidavits of Drs. Johnston and Canfield were not a part of such proof; and this presents the first question raised upon the defendant's exceptions.

The proofs to be furnished by the plaintiff were by the terms of the policy to be satisfactory to the defendant's board of directors. This, to be sure, does not mean that the judgment of the defendant's board necessarily was to be final on the matter, but only that the proofs must be such as ought to be satisfactory to reasonable men acting reasonably. Accordingly it ordinarily will be for the jury, looking at the proof actually furnished, to say whether it was such as reasonably should have satisfied the directors. Noyes v. Commercial Travellers' Eastern Accident Assoc. 190 Mass. 171, 182, and cases cited. C. W. Hunt Co. v. Boston Elevated Railway, 199 Mass. 220. Cashman v. Proctor, 200 Mass. 272. But it was the duty of the directors to consider in the first instance the proof submitted by the plaintiff, to weigh it, and to make up their minds whether it ought to satisfy them as reasonable men. If they thought that further proof was

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needed to enable them to reach a conclusion, we see no reason why they should not call for it. And their right to do so has been affirmed or assumed in many decisions. See for example Martin v. Manufacturers' Accident Indemnity Co. 151 N. Y. 94, 106. Baldi v. Metropolitan Ins. Co. 24 Penn. Sup. Ct. 275. In Braunstein v. Accidental Death Ins. Co. 1 B. & S. 782, the right of the directors to obtain and consider such further evidence or information, if any, as they should think necessary, was fully recognized. In Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar Assoc. 126 N. Y. 450, 453, in which only proof of death was required, the court said: "The words 'satisfactory proof' entitled the association to demand that the fact of death should be shown with reasonable definiteness and certainty, and if the proofs furnished failed to satisfy the association of the fact of the death, the association acting reasonably and in good faith could require further evidence." In some cases, not only is it assumed that new proof may be called for, but it is held that the doing so is a waiver of objection which might have been taken to the sufficiency or reasonableness of that already presented. McElroy v. John Hancock Ins. Co. 88 Md. 137, 150. Trippe v. Provident Fund Society, 140 N. Y. 23, 28. Standard Ins. Co. v. Davis, 59 Kans. 521, 527. Hohn v. Inter-State Casualty Co. 115 Mich. 79. In Campbell v. Charter Oak Ins. Co. 10 Allen 213, additional proofs were furnished by the insured and were considered without objection; and the right of the insured to make additional proof and to correct errors in that already furnished was asserted. This point has never since been questioned, though upon the main point decided the case has been often doubted and limited. We find nothing at variance with this doctrine in Goldschmidt v. Mutual Life Ins. Co. 102 N. Y. 486, or Louis v. Connecticut Ins. Co. 58 App. Div. (N. Y.) 137. It may well be that if the right to call for further proof is given by the terms of the policy to only one officer of the insuring company it cannot be exercised by another; and that is all that was decided in Tessmann v. United Friends of Michigan, 103 Mich. 185.

It is of some importance that the plaintiff acquiesced in the request of the defendant for these additional affidavits, and furnished them through her then attorney, who must be taken

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on the record to have acted with her consent and by her authority. We need not consider what her rights would have been if she had not done so, but had elected to stand upon the proof already furnished. Metropolitan Ins. Co. v. Mitchell, 175 Ill. 322.

We are of opinion that the judge erred in ruling that the affidavits of Johnston and Canfield were not a part of the preliminary proof, furnished by the plaintiff to the defendant in accordance with the requirement of the policy.

The question whether upon this complete proof it would have been open to the jury to say that the board of directors, acting as reasonable men, ought to have been satisfied, not only of the death of the insured, but that his death was "caused wholly and entirely by external, violent and accidental means," is somewhat difficult. Upon this question the affidavits disclosed evidence which would have warranted diametrically opposite answers. They showed that there had been severe accidental injuries, followed within two days by death which, upon the statement first made by Dr. Johnston, seemed to be the direct result of those injuries. This view was supported by the affidavit of the plaintiff, and by those of Farnsworth and of the undertaker, so far as they could be taken to have spoken from knowledge. But in his subsequent affidavit Dr. Johnston stated, upon information, that the deceased had suffered from a pre-existing sickness, and declined to say positively that death, was or was not the result of the accident. Dr. Canfield in his affidavit declared that the death was not caused wholly by external, violent and accidental means, that the deceased had been under the deponent's medical treatment for acute nephritis for approximately two months, and that the death was due to uraemic convulsions. Upon this state of the evidence, the defendant's counsel have argued with great force that the jury should not be allowed to say that the directors, acting as reasonable men in a fiduciary capacity (Elliott v. Baker, 194 Mass. 518, 523; Palmer v. Northern Relief Assoc. 175 Mass. 396, 397), ought to have decided that they were satisfied that the death was due wholly and entirely to the injuries sustained by the accident. As this question is likely to be raised again at a new trial, in substantially the same way, it ought now to be considered.

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This question, it must be remembered, is to be decided solely upon the evidence furnished to the directors. As was stated in Noyes v. Commercial Travellers' Eastern Accident Assoc. 190 Mass. 171, 181, the issue upon this branch of the case is not what was actually the cause of the death, but whether the plaintiff had furnished sufficient proof to the directors. Without showing that she has done this, she cannot maintain the action. But with some hesitation we have reached the conclusion that the question whether she has maintained this burden is for the jury. It is clear from what already has been said that from the evidence stated, without considering the additional evidence put in at the trial, which of course cannot be considered upon this issue, the jury might find that the death was due wholly and solely to the accidental injuries. If the jury should so find, we are of opinion that they also would have the right to say that the same fair preponderance of the evidence which had convinced their judgments ought to have produced the same conviction in the minds of other reasonable men. It would be an anomaly for us to decide otherwise. It cannot be said as matter of law that reasonable men were bound to come to only one conclusion. Webber v. Cambridgeport Savings Bank, 186 Mass. 314, 315. It is not for the defendant, in a case of contradictory evidence, finally and decisively to pass upon the rights of the insured, if such a condition as this has been reasonably complied with. Taylor v. AEtna Ins. Co. 13 Gray 434, 438. Insurance Co. v. Rodel, 95 U. S. 232, 237.

The other questions discussed at the argument may be more briefly considered.

The testimony of Dr. Johnston and of the medical experts to their opinion that the death of Gourley was due to the accident and not to uraemic convulsions, was competent upon the issue of what was the real case of the death. It cannot be held to be incompetent because it tended to contradict some of the statements of opinion contained in the preliminary proof furnished by the plaintiff. The case of Campbell v. Charter Oak Ins. Co. 10 Allen 213, so far as it tends to support this contention of the defendant, has been discredited by subsequent decisions. Abraham v. Mutual Reserve Fund Association, 183 Mass. 116. Barker v. Metropolitan Ins. Co. 198 Mass. 375, 382, and cases cited.

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John Hancock Ins. Co. v. Dick, 117 Mich. 518. The preliminary proof was not necessarily a bar to the maintenance of the action.

The jury ought not to have been allowed to consider the statements made in the preliminary proofs of death as evidence in favor of the plaintiff upon the issue of what was the real cause of Gourley's death. These papers were admissible for the plaintiff and could be considered in her favor only upon the issue of the sufficiency of the proof submitted by her to the defendant's directors. This is settled both upon reason and authority. Cluff v. Mutual Benefit Life Ins. Co. 99 Mass. 317, 324. Cook v. Standard Life & Accident Ins. Co. 84 Mich. 12. Senat v. Porter, 7 T. R. 158. How far these statements would have been competent against her, as admissions made or adopted by her, need not now be considered. Mutual Life Ins. Co. v. Newton, 22 Wall. 32. Wall v. Continental Casualty Co. 111 Mo. App. 504.

Exceptions sustained.