59 Ill. App. 522 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
Insurance policies are to be liberally construed in favor of the insured so as not to defeat, without a plain necessity, the claim to the indemnity, which, in making the insurance, it was the object to secure. When the words are, without violence, susceptible of two interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted.
Having in view this rule of construction, the Supreme Court of this State in Healey v. Mutual Accident Association, 133 Ill. 556, held that a death occasioned by the accidental swallowing of an overdose or excessive quantity of chloral was caused by external and violent means.
The certificate in that case contained the following: “ Provided, always, that benefits under this certificate shall not extend to any death which may have been caused * * * by the taking of poison.”
The words “ the taking of poison,” are ordinarily used to mean taking by swallowing; we are unable in reference to such manner of taking, to perceive that any additional force or meaning is imparted to the certificate by adding to the clause “ by the taking of poison,” the words, “ in any way or manner.”
The Supreme Court of this State in the case above cited said: “ Indeed, we are inclined to concur with what was said by the Court of Appeals of New York in Paul v. Travelers Ins. Co., 112 N. Y. 472, that where a death is the result of accident, or is unnatural, implies an external and violent agency as the cause.” It is clear that in the Healey case the Supreme Court of this State had in mind and passed upon the question of death arising from the taking of poison, under a certificate substantially like that presented in the case at bar. This court, following the Supreme Court, has at this term, in Travelers Ins. Co. v. Dunlap, opinion filed July 5, 1895, passed upon the principal contention of the present appellant, and to that cause we now refer for a more complete statement of reasons for our present action.
The company having denied all liability, the making of proof of death was thereby waived. Williamsburg Ins. Co. v. Carey, 83 Ill. 454.
There is no dispute that it was notified (informally) of the death and claim. Whether the question of waiver was (in form) properly found by the court is immaterial, as the fact of conduct amounting to a waiver is indisputable.
It is contended that the action was prematurely brought. The insured died February 27th; this suit was begun May 5 th.
The certificate contains the following: “ For the loss of life, either immediately or within ninety days of the said accident, $5,000 shall be paid to Mrs. Myrtle Froiland, if surviving, otherwise to the legal representatives of the insured, within ninety days after the receipt of satisfactory proofs thereof.”
Section 22 of the by-laws is as follows: “Ho suit shall be commenced or maintained against this association' unless the same shall be commenced within thirty days from and after the date of the refusal of the association to entertain the claim or pay an award. The failure of the association to pay a claim within sixty days from the date of filing with the association proofs thereof, shall be construed by the member as a refusal on the part of the association to pay said claim, and no suit or proceedings at law shall be brought by said member, his heirs, executors, administrators or assigns, unless the same shall be commenced within thirty (30) days from the expiration of said sixty (60) days hereinbefore mentioned.”
It is admitted that March 22d the secretary of the company told appellee that her claim would not be paid, yet no formal notice that the company would not recognize the claim of appellee was ever given to her. We are therefore of the opinion that she had, under by-law 22, a right to wait until the expiration of sixty days from the death of the insured before taking notice that her claim would not be voluntarily paid, and that upon the expiration of sixty days a right of action accrued at once (Ætna Ins. Co. v. Muguire, 51 Ill. 342; Williamsburg Ins. Co. v. Carey, 83 Ill. 453; May on Insurance, Sec. 488), which action she properly brought May 5th. As to whether the limitation of thirty days is a reasonable one, we express no opinion.
We regard the allegations of the declaration, after verdict, as sufficient in this regard. See Tidd’s Practice, Sec. 451-919. Appellant waived its demurrer to the declaration by pleading without asking for a decision thereon.
We see no reason why the insured and appellee were not bound by the by-laws of the company; yet we regard the findings of the court in respect to such by-laws as immaterial, it appearing that appellee has complied Avith all regulations not Avaived by appellant.
Under the rule laid down by the Supreme Court in the 133d Illinois, appellee was, upon the facts, entitled to recover. Whether the court should have sustained appellant’s demurrer to the special replication of appellee is immaterial, as her action was brought within thirty days after she Avas chargeable with notice, under the by-laAvs, that the company would not pay her claim.
That the finding and judgment exceeds the ad damnum of the declaration was not a matter pointed out and excepted to in the court below, where an amendment could easily have been made; such objection can not be here first made. Utter v. Jaffray, 15 Ill. App. 236; Tomlinson v. Earnshaw, 112 Ill. 311.
The judgment of the Circuit Court is affirmed.
