85 F. 401 (8th Cir. 1898), 931, Western Commercial Travelers' Ass'n v. Smith

Docket Nº:931.
Citation:85 F. 401
Case Date:February 14, 1898
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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85 F. 401 (8th Cir. 1898)




No. 931.

United States Court of Appeals, Eighth Circuit.

February 14, 1898

F. N. Judson (C. S. Taussig and Louis R. Tatum, on the brief), for plaintiff in error.

S. L. Swarts (E. M. Merriman and George H. Sanders, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

SANBORN, Circuit Judge.

The Western Commercial Travelers' Association, the plaintiff in error, has sued out a writ to reverse a judgment against it upon a certificate of insurance against accident which it issued to Freeman O. Smith, one of its members, for the benefit of

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Sarah I. Smith, the defendant in error. A jury was waived, the court tried the case and made a special finding of the facts, and the error assigned is that the facts found do not support the judgment (1) because they show that immediate notice of the accident or injury was not given to the association, as required by the policy, and (2) because they fail to show that the death of the member was produced 'by bodily injuries effected by external, violent, and accidental means.'

These are the facts relative to the two questions thus raised which appear from the pleadings and the findings: The certificate upon which the suit is based secured to the member, Freeman O. Smith, indemnity in various amounts for total disability, for the loss of an arm or a leg, or one arm and one leg, and for the loss of both arms or both legs, by accident; and it also secured to his beneficiary, the defendant in error, indemnity for his death produced 'by bodily injuries effected by external, violent, and accidental means' alone. It contained this provision:

'In the event of any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, immediate notice shall be give in writing addressed to the secretary, at St. Louis, Missouri, stating the full name and address of the member, number of certificate, occupation, and name and address of the attending physician, with full particulars of the accident or injury, and failure to give such notice shall invalidate all claim under the certificate; and unless direct and affirmative proof of the death or duration of total disability shall be furnished the association within ninety (90) days from the happening of such accident, as per forms of proof furnished, and questions prepared on same by the board of directors of the association, then all claims under this certificate shall be waived and forfeited to the association.'

In the latter part of August, 1895, while this certificate was in force, Freeman O. Smith, who was a strong and healthy man, commenced wearing a pair of new shoes. About September 6, 1895, the friction of one of the shoes against one of his feet, unexpectedly and without design on his part, produced an abrasion of the skin of one of his toes. He gave the abrasion reasonable attention, but it nevertheless caused blood poisoning about September 26, 1895, which resulted in his death on October 3, 1895. Neither the deceased nor the defendant in error gave any notice of this accident or injury to the association before his death, but within a reasonable time thereafter due notice thereof and of her claim under the certificate was given to the association by the defendant in error.

The agreement of the parties was that the failure to give the notice required by this certificate should invalidate all claim under it, and there can be no question but that the service of this notice was a condition precedent to the enforcement of any such claim. Insurance Co. v. Kyle, 11 Mo. 278, 289; McCullough v. Insurance Co., 113 Mo. 606, 21 S.W. 207; McFarland v. Association, 124 Mo. 204, 27 S.W. 436. The real question here is, therefore, what was the notice exacted of the beneficiary by the contract and when was it to be given? The agreement was that, 'in the event of any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, immediate notice shall be given. ' In the interpretation of this provision, the fact must be borne in mind that all claims under this contract for accidents and injuries which do not result in death

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accrue to the member himself. The beneficiary of the death loss has no interest in them. It is only in a case in...

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