194 Mo. App. 29 | Mo. Ct. App. | 1916
This is an action on a death benefit certificate issued by defendant, a fraternal beneficiary association, to James Simmons who died in September, 1911, while in good standing with defendant. We held on a former appeal that the certificate was an Iowa contract which must be interpreted and enforced according to the laws of that State and reversed the judgment which plaintiff had recovered in the circuit court and remanded the cause for the reason that plaintiff had failed to prove the pertinent laws, of Iowa and would not be entitled to recover if the laws of this State were applied to her cause. [See Simmons v. Modern Woodmen of America, 172 S. W. 492.]
At a subsequent trial in the circuit court without a jury plaintiff proved the laws of Iowa, the court again
The first defense is based upon a provision in the contract that “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. ’ ’
The decisions in' Iowa which plaintiff introduced in evidence and to which we referred in our former opinion interpret such provisions in insurance contracts to mean that the limitation period shall not begin to run until the-cause of action accrues, i. e. until the right of the beneficiary to sue arises. [Kiisel v. Ins. Co., 131 Ia., 54; Read v. Ins. Co., 103 Ia. 307; McConnell v. Ins. Co., 79 Ia., 757; Brewing Co. v. Ins. Co., 111 Ia. 590, 82 N. W. 1023; Creamery Co. v. Ins. Co., 112 Ia. 608, 84 N. W. 904; Amy v. Dubuque, 98 U. S. 470.]
Plaintiff appears to have the better of this discussion. Under the terms of the contract she had no right to sue until defendant rejected her demand and we' think it was clearly contemplated and intended that she should refrain from suing until advised by defendant of such rejection. The undisclosed decision of defendant to reject her claim was not a rejection since defendant would have had the right to rescind that action at any time before its formal announcement to plaintiff. Defendant’s proof, shows that its board of directors did formally decide to reject the claim on December 16, 1911, and that plaintiff was notified of that decision by letters posted immediately thereafter but the proof of plaintiff shows that defendant afterward, in answer to letters from plaintiff or her agent, wrote a letter stating that the matter had been referred to defendant’s general attorney with whom she could hold “further communication on the subject of the claim.” The court, as a trier of fact, was entitled to' infer from this proof that final unequivocal notice of rejection was not given plaintiff before April 2, 1912, and therefore within the limitation period of eighteen months and since the court has settled this issue of fact in favor of plaintiff and its decision is supported by substantial evidence, we have no ground to interfere.
This is. not an instance of an attempted waiver of terms of the contract by a local agent, snch as we had before us in Knode v. Modern Woodmen, 171 Mo. App. 377, where the beneficiary attempted to rely on an act of the agent which the member knew from the contract was unauthorized, but is an instance where the agent, pursuant to the contract and within the scope of the duties of his office, undertook to perform a task which his duty to his employer required him.to perform, and for the breach of which his employer could not escape liability.
On the hypothesis of plaintiff’s evidence, we must assume that the chief officers of defendant, with knowledge of all the facts, for two years collected and retained dues, etc. under the contract, knowing that the member, relying on the promise of its agent to advise him if defendant required anything more to be done, was resting in the belief that the certificate covered the risks of his hazardous employment. Under such facts we must hold the defendant itself, and not its local agent, waived the contractual exemption from liability for such risk.
The judgment is affirmed.