O'Brien v. Sovereign Camp of Woodmen of World

• Decision Date: 27 April 1936
• Docket Number: 27-1936
• Parties: O'Brien v. Sovereign Camp of the Woodmen of the World, Appellant
• Court: Pennsylvania Superior Court

184 A. 546

122 Pa.Super. 39

O'Brien v. Sovereign Camp of the Woodmen of the World, Appellant

No. 27-1936

Superior Court of Pennsylvania

April 27, 1936

Argued March 3, 1936

Appeal by defendant, from order and judgment of C. P., Lackawanna Co., May T., 1933, No. 232, in case of Eugene O'Brien v The Sovereign Camp of the Woodmen of the World.

Assumpsit. Before Leach, P. J., without a jury.

The facts are stated in the opinion of the Superior Court.

Findings and judgment thereon for plaintiff. Defendant appealed.

Error assigned, among others, was dismissal of exceptions to findings of facts and conclusions of law.

Affirmed.

James G. McDonough, with him Clarence J. Wing, for appellant.

Edward J. Kelly, with him John P. Kelly, Clarence Balentine, and W J. Fitzgerald, of Kelly, Balentine, Fitzgerald & Kelly, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Parker, James and Rhodes, JJ.

OPINION

Baldrige, J.

The plaintiff in this action of assumpsit is the beneficiary in a certificate of insurance issued by defendant on the life of Patrick O'Brien.

On April 28, 1927, the insured, then 50 years of age and unmarried, arose about 4 a. m., left his boarding house in a suburban section of Scranton, and never returned. About two months later, some boys found the partly decomposed body of a man on West Mountain, not far distant from where O'Brien had lived. Neither the police, coroner, nor anyone else was able to identify it and the undertaker was directed to bury the body where it was found. A sister, Nellie O'Brien, who had been living away from Scranton, returned sometime thereafter. She made an investigation and became convinced that this body was that of her brother. She thereupon notified the plaintiff, a resident of Chicago, of their brother's death.

On July 12, 1929, the plaintiff forwarded to the defendant proofs of death containing the facts then known and the beneficiary certificate. On September 12, 1929, the body was exhumed, and, after some further examination, it was buried in the O'Brien cemetery lot. On September 23, 1930, the defendant wrote a letter to plaintiff's attorney in Chicago, wherein it was stated, in part, as follows: "Replying to your communication of the 17th inst. relative to the above case we wish to advise that it has been necessary to withhold payment of the claim under the certificate held by Patrick O'Brien by reason of the fact that no satisfactory proofs of death have been submitted . . . . If any definite proof can be submitted showing that the body of the man found on West Mountain was in fact the body of Patrick O'Brien, the matter will be given further consideration but until positive identification can be made this association can admit no liability." In the meantime, suits were instituted in Lackawanna County by the sister under other insurance policies, and trials were had thereon. On February 25, 1933, defendant wrote, evidently in response to a letter not of record, to plaintiff's attorney: "We shall be glad to receive and examine a copy of the testimony given in the case or cases against the Prudential Life Insurance Company and will give the same careful consideration. If the claim for death benefit under this certificate is finally rejected we will return the beneficiary certificate to the designated beneficiary or his authorized representative."

Finally, on March 6, 1933, the beneficiary certificate was returned to plaintiff. This was the first unequivocal denial of liability. Suit was brought, March 28, 1933, and came on for hearing before Judge Leach, without a jury in accordance with agreement of the parties. Judgment nisi was entered in favor of the plaintiff for the sum of $ 1,345. Exceptions thereto were dismissed and judgment was made absolute. This appeal followed.

The evidence of identification adduced at the trial was sufficient to warrant the trial judge's holding that the body found was that of the insured. That feature of the case is not seriously pressed in this appeal. Suit not having been instituted until March 28, 1933, the real dispute is whether an action can be maintained under the following provision in the policy: "No legal proceedings for recovery under a certificate shall be brought within ninety days after receipt of proofs of death by the Sovereign clerk, and no suit shall be brought upon a certificate, unless said suit is commenced within one year from the date of death." It must be conceded that the plaintiff has the burden of showing a valid reason why this limitation is not binding. It is obvious at once from the facts stated that the plaintiff could not have brought suit within the one-year limitation, as it was not known within that period that the insured was dead.

While no Pennsylvania authorities exactly in point have been cited, and we have found none, the text writers and decisions in other jurisdictions support the proposition that a stipulation limiting suit to a certain time after death does not apply where the insured's death was not known either to the insurer or to the beneficiary: Joyce on Insurance, vol. 5, § 5351; Couch's Ency. Insurance Law, vol. 7, § 1646. In the case of Teed v. Brotherhood of American Yeomen (Wash.), 190 P. 1005, the writer of the opinion, in upholding the rule, stated that the purpose of such a provision is to limit the time when an action may be brought after a dispute has arisen.

Concluding, as we do, that the one-year limitation from death was not binding, for the reason that the beneficiary did not know within that time of the death of the insured, was it necessary for the plaintiff to bring his action within a year after his sister notified him of the brother's death? The plaintiff's position is that that question requires a negative answer, as the insurer's conduct, after receiving proofs of death, constituted a waiver of the one-year limitation from that date. This provision is for the benefit of the defendant, and may be, either impliedly or expressly, waived, or the defendant, by its conduct, can be estopped from asserting it.

Waiver is essentially a matter of intention and must be based on sound reasonable inference that the insurer...