Correll v. Nat'l Accident Soc'y

• Decision Date: 07 July 1908
• Citation: 139 Iowa 36,116 N.W. 1046
• Parties: CORRELL v. NATIONAL ACCIDENT SOCIETY.
• Court: Iowa Supreme Court

139 Iowa 36

116 N.W. 1046

CORRELL

v.NATIONAL ACCIDENT SOCIETY.

Supreme Court of Iowa.

July 7, 1908.

Appeal from District Court, Benton County; J. M. Parker, Judge.

Action at law to recover on two accident insurance policies. Trial was had to a jury, and there was a verdict and judgment for plaintiff. Defendant appeals. Reversed.Whipple & Brown and McBurney & McBurney, for appellant.

Nichols & Nichols, for appellee.

BISHOP, J.

The policies in suit were issued to the husband of plaintiff, John D. Correll. Each bears date July 20, 1905, and contains the same promises and provisions. For the purposes of the case, they may therefore be considered as one policy. Among other things, it is promised that if the insured meet death by reason of personal bodily injury, through external, violent, and accidental means, and resulting solely and independently of all other causes, the full sum stipulated shall be paid. Among other provisions are these: “The insurance under this contract does not cover * * * suicide; * * * willful or unnecessary exposure to apparent danger; * * * intentional injuries inflicted by the insured or any other person; walking or being on the roadbed of any railway.” Written notice of the happening of an accident is required to be given the society at once upon the happening thereof, and a failure to do so within 10 days shall invalidate the policy. “Unless affirmative and final proofs, containing answers under oath to questions in the blank furnished by the society upon request for that purpose, are filed with the society within one month from date of death, * * * all claims for benefits based thereon shall be waived and forfeited to the society. * * * No legal proceedings for a recovery under this policy shall be brought within three months after the receipt by the society of proofs as above stated, and the society shall not be liable in any legal proceedings unless the same is commenced within six months from date of receipt of such proofs.” The said John D. Correll met his death on October 16, 1905. He was found at about 9:30 o'clock p. m. on the tracks of the Illinois Central Railroad at Waterloo; his body being cut in two. Defendant admits the death of Correll, but denies that the same was the result of personal bodily injury, through external, violent, and accidental means, and independent of all other causes. Further, it resists payment on the ground of the violation and failure to comply with each of the policy provisions to which we have made reference above.

1. At the close of all the evidence, defendant moved for an instructed verdict on the grounds: (a) Written notice of the accident was not given, as required; (b) final proofs were not filed within the time and on blanks, as required; and (c) no final proofs having been filed, the action is not maintainable. The fact situation, shown without dispute, necessary to an understanding of the questions presented, is as follows: On October 18th, plaintiff wrote defendant, in substance, that her husband had been killed in Waterloo, “apparently crossing or waiting to cross the tracks of the Illinois Central Railroad to his boarding house.” After making reference to her circumstances, the letter continues: “I wish you would please be so kind as to hasten settlement as I am very needy.” And the letter closes by asking that the society “attend to this as promptly as possible.” On October 24th, the Secretary of the society responded, saying: “We have your letter notifying us that your husband was killed at Waterloo, * * * and stating that it was apparent that he was crossing or waiting to cross railroad tracks. There seems to be some doubt about this, and I wish you would give us the names of the witnesses to the accident, or who were with him just prior to the accident, and the names of those who first arrived after the accident. We will give the claim our immediate attention, and if the proofs show that the claim is a valid one, you will be paid.” Plaintiff in testimony neither affirms nor denies receipt of this letter, but she says that “the company never mailed me any blanks on which to make proof of death.” And counsel for defendant do not pretend in argument that the evidence in the record makes showing to the contrary. Plaintiff says she waited for the society to act until in November, when, hearing nothing, she placed the matter in the hands of Mr. Nichols, her attorney. Nichols, as a witness, testified that he prepared proofs of death in the form of affidavits setting forth the circumstances of the accident and forwarded the same to defendant in January, 1906. In the letter of transmittal, request was made that the society, after arriving at a conclusion, advise him of the action taken. On January 24th, the society responded acknowledging receipt of the affidavits. In the letter, the statements in the affidavits respecting the circumstances surrounding the death of Correll are criticised as unreasonable, and it is said: “We have made a thorough investigation, and, while there were no witnesses, it is quite evident that he was on a railway roadbed, and on this account we supposed the claim abandoned.” It is also said in the letter that no request had ever been made for blanks for proofs as required by the policy, and that “if it is your intention to encourage * * * a claim, we will upon request furnish a blank, although it will be understood that in so doing we waive none of our rights.” In a further letter, written on February 24, 1906, in answer to a request by Nichols for a copy of plaintiff's letter of October, 18, 1904, the secretary of the society discussed the circumstances of the death of Correll as understood by the society, and closed by insisting that death came while the insured was on a railroad track in violation of the terms of the policy. This action was commenced on July 16, 1906.

Having the fact situation before us, we may now give attention to the several grounds of the motion, taking them up in their order. That the letter of plaintiff considered as a notice of the accident was not fatally deficient is very clear to our minds. By the letter the society was advised that Correll had been found dead at Waterloo, in the nighttime, on a railroad track, and apparently death had been caused by his being run over...