185 Mo. App. 483 | Mo. Ct. App. | 1914
Lead Opinion
In February of the year 1904, James Simmons became a member of the defendant association at the town of Mystic in the State of Iowa by joining a local lodge at that place. There was issued to him at that place a benefit certificate of life
There are two defenses made. One that the action is barred by a provision in the certificate limiting the time in which an action may be brought; and the other that deceased violated the terms of the contract by adopting the labor of a brakeman on a railroad which is denominated as hazardous employment, requiring special action on the part of deceased and defendant in order to make the certificate applicable thereto. The provision limiting the time for bringing the action is as follows: “No action can or shall be maintained on this certificate until after the proofs of death and claimant’s right to benefits, as provided for in the by-laws of this Society have been filed with the head clerk, and passed upon by the board of directors, nor unless brought within eighteen months from the date of the death of the member.”
This action was brought the 29th of August, 1913, which, without noting the extra three days, as five months more than the limited period of eighteen months after deceased’s death. But plaintiff claims the limitation period did not begin to run until after the proofs of death were passed on by the board of directors as is contemplated by the provision just set out. On the other hand defendant insists, -that the period began to run, as it reads, “from the date of the death of the member. ’ ’
There is thus presented a question about which the authorities are almost evenly divided, whether considered in reference to their number, or the stand
In a note to Sample v. Insurance Co., 46 South Car. 491, published in 47 L. R. A. 696, is found a valuable discussion of the- question and to the great number of cases cited in the State report, others have been added. The following are cases holding to the literal construction that when the policy requires the action to be brought within a stated time after the death, loss or fire, such time begins to elapse at that day, precisely as it reads, notwithstanding other provisions which withhold liability until after proofs of loss, or death. [Johnson v. Ins. Co., 91 Ill. 92; Chambers v. Ins. Co., 51 Conn. 17; Va. F. & M. Ins. Co. v. Wells, 83 Va. 736, 740; Steel v. Ins. Co., 93 Mich. 81; Peck v. Ins. Co., 102 Mich. 52; Hart v. Ins. Co., 86 Wisc. 77; Eagan v. Ins. Co., 29 Oregon 403; Melson v. Ins. Co., 97 Ga. 722; Carraway v. Ins. Co., 26 La. Ann. 298; Travelers Ins. Co. v. Ins. Co., 1 N. H. 151; Glass v. Walker, 66 Mo. 32, followed in Bradley v. Ins. Co., 28 Mo. App. 7 and Grigsby v. Ins. Co., 40 Mo. App. 276.]
Some of these distinguish between the effect of the words of limitation, ‘ ‘ after the fire ’ ’ and ‘ ‘ after the loss.” Others repudiate such distinction. The following taken from decisions under policies containing •either mode of expression, shows the line of thought of the courts holding to the literal construction of the ■contract: In Hart v. Ins. Co., supra, the Supreme Court of Wisconsin in deciding that the words “after the fire” started the running of the time at the date of the fire, said it could not ‘ ‘ assent to the line of rea
It is conceded in all this class of cases where the matter is referred to at all, that if other provisions of the contract leave an unreasonably short part of the time limited, the limitation clause will be void; or, if conduct of the insurance company prevents an action being brought sooner than an unreasonably short time before the limit expires, it will be estopped.
The following are cases which have adopted what is termed a relative construction. That is, they take the view that these affirmative and specific words of limitation are necessarily modified in the degree that they may relate to other words connected therewith in other provisions of the policy which prevent a right to sue from accruing against the company until a certain period after notice, or proofs of loss, or a determination of the amount due, has been had. [Steen v. Ins. Co., 89 N. Y. 315; Chandler v. Ins. Co., 21 Minn. 85; Sun Ins. Co. v. Jones, 54 Ark. 376; Murdock v. Ins. Co., 33 W. Va. 407; Ins. Co. v. Scales, 101 Tenn. 627, 640; Case v. Ins. Co., 83 Cal. 473; Sling v. Ins. Co., 8 Utah 135; German Ins. Co. v. Davis, 40 Neb. 700.] The effect of what is said in these cases is, that the parties could not reasonably have intended to give a certain time for beginning the action and then cut off a part of that time in other provisions. But, in our judgment, the most formidable argument in favor of the proposition that the time in which the contract forbids the bringing of an action ought not to be counted as a part of the final limitation, is -found in that well-recognized rule that the words and phraseology of a -contract should be construed most strongly against the party who wrote them. Where an insurance contract is so drawn as that reasonable and intelligent men would differ as to its meaning, “the doubt should
It will be noticed that we have cited our Supreme Court (Glass v. Walker, supra) and this court (Bradley v. Ins. Co., supra, and Grigsby v. Ins. Co., supra) with those courts announcing the literal construction of such policies. .The report of Glass v. Walker does not affirmatively disclose that the policy contained a provision to the effect that nothing was due or payable in case of loss until a certain period should elapse, though it does show it by necessary inference, and it was assumed by us, in the cases following it, that it did contain qualifying provisions; and so the case has been classed by the courts of other States. So that were we now compelled to choose from these conflicting authorities we would be bound to follow the ruling of our Supreme Court and hold the action to be barred.
But the following consideration relieves us from the necessity of deciding the question. Deceased was a resident of the State of Iowa and was a member of an Iowa lodge. The certificate was issued to bim by reason of that membership and is an Iowa contract and must be judged by the laws of that State. [Trower
In Iowa the construction of such insurance is that while a period different from the statutory limita~tions to actions generally may be agreed upon, yet, under the relative construction adopted in that State, such period does not begin to run until after a cause ■of action accrues, that is, until after a right to sue •exists under other provisions of the policy. [Kiisel v. Ins. Co., 131 Iowa, 54; Read v. Ins. Co., 103 Iowa, 307; McConnell v. Ins. Co., 79 Iowa, 757.]
We must therefore hold that the eighteen months ’ period of limitation did not begin to run against plain-biff until she became aware that her claim had been rejected by the board of directors, as is contemplated by the contract.
The record shows that deceased died the 24th of September, 1911, that proof of death was made the '25th of October, 1911, and the claim rejected the 16th •of September, 1911; yet this suit was not brought ■until the 29th of August, 1913, which was several months more than the eighteen months of limitation agreed upon.
But in avoidance of this apparent bar plaintiff introduced evidence tending to show that no notice was given to her of this adverse action hy the board until the “early part of the year 1912” and she testified she ■did not receive notice of it until the 2nd of April, 1912. As she brought this action the 29th of August, 1913, 'it would be necessary to show that she was notified •as early as the last of February, 1912, in order to cover the limit of eighteen months. We think the evidence sufficient' to support the court’s finding, that she
We have no doubt that it was defendant’s duty to notify plaintiff that her claim had been rejected by the board of directors. .It was something that no one could know but defendant until it made the communication. Her presentation of the claim called for action and decision on its part and an announcement of that decision to the claimant.
The second branch of defendant’s defense is that deceased violated the terms of the contract in that, for several years before his death he was engaged in the hazardous employment of brakeman on a railway train and that his death resulted from such employment. At the time defendant issued deceased’s certificate to him such hazardous employment was forbidden, but afterwards defendant altered its by-laws so as to permit members to obtain hazardous occupation certificates- by applying to the camp clerk and paying an increased rate,. It is clear that defendant did not prohibit taking a railroad, brakeman as a risk, but merely required that if one of its members desired to enter into such employment and to continue his relations with the association, he should apply to the “camp clerk” for a certificate. This plaintiff, as deceased’s wife, transacted the business connected with the insurance and reported to him. She testified that she informed the camp clerk two years before her husband’s death that her husband was. engaged as a brakeman on a railroad and that she had heard the policy might not be good for certain kinds of work. That the clerk informed her “everything was all right and he would find out if there was. anything I should do with the policy, and if there was he would let me know.” That if anything happened 'to her husband in the meantime the policy would be all right. She told him if it was
Now while it is true defendant had a right to provide that if any of its members holding certificates of insurance should engage in the occupation of brakeman on a railroad train it should forfeit the certificate. Yet, in the circumstances here shown, there was a failure to exercise such right — a waiver by affirmatively assuring the member that the occupation would not be allowed to affect his certificate and continuing for two years to accept his dues. An insurance company should not be allowed to accept premiums with knowledge of cause of forfeiture, and then deny that they bought insurance. “Waiver by the acceptance of a premium is not based upon contract, but upon estoppel of the company to insist on conditions of the policy inconsistent with the acceptance or retention of the premium.” [Keys v. Knights and Ladies, 174 Mo. App. 671, 679; Jackson v. American Yeoman, 167 Mo. App. 19.]
We have no doubt that the “clerk of the camp” to whom plaintiff conveyed the information of deceased’s employment, and from whom she received the assurances that everything would be right; and who regularly received the premiums or dues conceded to have been regularly paid, was the agent of defendant and that his knowledge and acts were those of the company itself. [Jackson v. American Yeoman, supra, 25; Andre v. Modern Woodmen, 102 Mo. App. 377; Boward v. Bankers Union, 94 Mo. App. 442.]
The result of the foregoing considerations is to affirm the judgment.
Rehearing
In a motion for rehearing defendant calls attention to the fact that the law of Iowa, referred to in the opinion was not proven by plaintiff and therefore the case must be decided under the law as it is declared in this State. Plaintiff, in response,, admits this, but contends that the law in this State should be declared to be in favor of the relative construction favored by the array of authority cited in the foregoing opinion. But the difficulty with plaintiff’s situation is, that the law in Missouri has been declared by the Supreme Court in Glass v. Walker, 66 Mo. 32, adversely to her case and the only refuge she has is the law of Iowa, not proven.- The case of Glass v. Walker shows that the suit was begun only twenty-two days after 'the limitation period expired, and the opinion shows (bottom p. 33) that proofs of loss must be made and the law is that the insurer must have reasonable period to examine these. Then it appears (p. 35). that the insurer demanded copies of the inventories of the goods and they were then furnished. Until the conditions of the policy were complied with by the plaintiff he could not bring his action. A compliance with such provisions probably took more than the time plaintiff was too late with his suit and yet the Supreme Court took no note of the fact that the accruing of the cause of action was delayed by the provisions requiring the assured to do those things. The two cases we cited from this court are likewise against plaintiff’s case as made at the trial.
But we think the case should not be reversed outright and we therefore reverse the judgment and remand the cause.