116 N.W. 1046 (Iowa 1908), Correll v. National Acc. Soc.

Citation:116 N.W. 1046, 139 Iowa 36
Opinion Judge:BISHOP, J.
Party Name:NETTIE CORRELL, Appellee, v. NATIONAL ACCIDENT SOCIETY, Appellant
Attorney:Whipple & Brown and McBurney & McBurney, for appellant. Nichols & Nichols, for appellee.
Case Date:July 07, 1908
Court:Supreme Court of Iowa
 
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Page 1046

116 N.W. 1046 (Iowa 1908)

139 Iowa 36

NETTIE CORRELL, Appellee,

v.

NATIONAL ACCIDENT SOCIETY, Appellant

Supreme Court of Iowa, Des Moines

July 7, 1908

Appeal from Benton District Court.--HON. 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.

OPINION

[139 Iowa 37] 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 [139 Iowa 38] 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 ten 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

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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.

I. 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 [139 Iowa 39] making reference...

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