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Accident Insurance ? Action for Death ? Disease Contributing to Death ? Non-liability of Insurer Under Policy ? Evidence ? Res Gestae ? Declarations Made by Insured After Accident ? When Admissible ? Pleading ? Complaint ? Exception in Policy as to Liability ? Matter of Defense. Pleading ? Complaint ? When Sufficient. 1. A complaint is sufficient as to substance if a cause of action is stated upon any theory. Accident Insurance ? Complaint ? Plaintiff not Required to Plead That Injury or Death not Result of Cause Excepted in Policy ? Matter of Defense. 2. In an action on an accident insurance policy the person seeking to recover need not allege that the death or injury of the insured did not result from any of the causes which by the terms of the policy relieved the insurer from liability thereunder, the fact that injury or death resulted from such cause being matter of affirmative defense, to be alleged by the insurer in its answer. Evidence ? Res Gestae ? Definition. 3. Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it and serve to illustrate its character. Same ? Declarations Made by Person After Injury ? When Admissible. 4. Declarations made while the mind of the speaker was laboring under the excitement aroused by an accident before there was time to reflect and fabricate, though not entirely contemporaneous with the main incident, are admissible; such declarations may be in the form of narrative, if made under the conditions stated. Same ? Res Gestae ? Admissibility in Discretion of Trial Court. 5. Whenever a question of fact arises upon conflicting evidence as to whether declarations are part of the res gestae, or depends upon contradictory inferences fairly to be drawn from uncontradicted evidence, their admissibility in evidence must be left largely to the sound legal discretion of the trial court, subject to review only in case of manifest abuse. Same ? Res Gestae ? Declarations ? Time Elapsing Between Accident and Utterances Important, but not Decisive. 6. In determining whether declarations were or were not part of the res gestae, the time elapsing between the accident and the utterances made by the declarant sought to be proved is important, but not decisive. - Page 255 Same ? Res Gestae ? Admissibility in Instant Case. 7. In an action to recover on an accident insurance policy for the death of insured, admission in evidence of declarations of decedent made from one to nine minutes after a fall over an obstacle in his path while on his way to work, held not an abuse of judicial discretion. Contracts ? Function of Courts. 8. It is not the province of courts to make contracts for parties sui juris, their function being to interpret and enforce them as made by the parties when legitimate and based upon a valid consideration. Accident Insurance ? Death Contributed to by Disease ? Insurer Held not Liable Under Policy. 9. In an action to recover under an accident insurance policy providing that "no accidental death benefit will be paid if the death is caused or contributed to directly or indirectly, or wholly or partially, by disease," held that where the insured, sixty-four years of age, suffering from hardening of the arteries, sustained a fall which because of the condition of the arteries caused a cerebral hemorrhage, causing death, the disease and fall were concurring, efficient and proximate causes in producing death ? either alone having been insufficient to have resulted fatally; hence death was contributed to, directly or indirectly, wholly or partially, by disease barring recovery under the above provision of the policy.

Professionnel et technique
23 février
LawApp Publishers

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