179 Iowa 603 | Iowa | 1917
“Whenever a member in good standing shall, through external, violent and accidental means, receive bodily injuries which shall, independently of all other causes, result in death within 90 days from said injuries, the beneficiary named in his application for membership, or his heirs, if no beneficiary is named therein, shall be paid the sum of |5,000,” etc.
“My dear Madam: Confirming a letter which we wrote to Mr. Matthews on April 30th, I now beg'to advise you that;at a regular meeting of our board of directors held at the offices of the association on May 1st, the proof of claim which you filed under date of April 21st in connection with the death of Mr. ffm. A. Thompson was referred to our board for their consideration, and I am instructed to advise you that this board disalloAved the claim filed by you, for the reason that the death of Mr. Thompson was not the result of accidental means, within the meaning and intent of the by-laws of the association, and that the association is therefore not liable. Yours very truly, L. C. Deets, Secretary. Claim Dept. FD-K.”
It is contended for the plaintiff that this letter specified the ground of defense to plaintiff’s claim, and in such specification eliminated the 90-day provision. It is said that the letter in effect limited the ground of defense to the claim that the death was not caused by accidental means. In support of this argument, reliance is had upon that class of cases which hold that, when liability is denied upon a specific ground, the party so specifying cannot change his ground after litigation is begun (Wood v. Hall, 138 Iowa 308, Schillinger Bros. v. Bosch-Ryan Grain Co., 145 Iowa 750); also upon that class of cases which hold that denial of liability by an insurance company amounts
We think it clear that no question of forfeiture is involved. Nor was it incumbent upon the defendant to plead the 90-day provision as a special or affirmative defense. The plaintiff did not in her petition set out the by-law which we have quoted above. She alleged generally that the bylaws did provide a death indemnity of $5,000 where death resulted from accidental means. The general denial of the defendant put this allegation in issue. In support of the allegation, the plaintiff introduced in evidence the by-law above quoted. No other evidence was introduced in its support. Clearly, the proof did not support the allegation as made. The burden was on. the plaintiff to plead and to prove a state of facts which came within the provisions of the by-law.
Assuming that this burden could be met by a showing of waiver, was the letter above quoted a sufficient showing of such waiver? It is claimed in argument that the effect of the letter in question was to advise the plaintiff that the specific and only reason for the disallowance was that the death of the insured did not result from accidental means. The language of the letter is that such death “was not the result, of accidental means within the ipeaning and intent of the by-laws of the association, and that the association is therefore not liable.” The by-laws disclose that the death indemnity is not promised for death resulting from any and all accidents. At this point, it insures only against such accidents as result in death within 90 days. With that
The arguments deal also with the question as to whether the alleged waiver was sufficiently pleaded in the petition. In view of our conclusion on the merits of the waiver, we need not consider the question of the sufficiency of plaintiff’s pleading. We see no escape from the conclusion that the accident relied upon as a basis of liability was not within the purview of the by-laws of the company. WTe are not disposed to give undue aid to merely technical defenses. On the other hand, accident insurance should not be made co-extensive in liability with life insurance.
We think the trial court properly directed the verdict, and its order is — Affirmed.