Asel v. Order of United Commercial Travelers of America
| Decision Date | 04 March 1946 |
| Docket Number | 20644 |
| Citation | 193 S.W.2d 74 |
| Parties | ASEL v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA |
| Court | Kansas Court of Appeals |
Bushman & Buchanan and H. P. Lauf, all of Jefferson City, for appellant.
Ragland Otto, Potter & Embry and Leon P. Embry, all of Jefferson City, for respondent.
Respondent, plaintiff below, brought suit on a benefit certificate issued by the appellant, and recovered a verdict and judgment in the sum of $ 1550. Appellant, defendant below, has appealed.
The plaintiff is a resident of Jefferson City, Missouri, and the defendant is a corporation and fraternal benefit society organized under the laws of Ohio, and authorized to do business in Missouri. Plaintiff made application in November 1936, for membership in the Jefferson City Council of said Order and was accepted, and thereafter the defendant, at its office in Columbus, Ohio, issued and mailed to plaintiff its Class A Insurance Certificate in question. Plaintiff had paid all dues, premiums and assessments required of him, and the certificate was in full force and effect.
Plaintiff's petition alleged that on October 20, 1941, he received severe bodily injuries as a result of slipping and falling upon his back at the home of his son in Jefferson City, and that said injuries were sustained solely through external, violent and accidental means within the meaning of the Constitution of defendant Order; that as a direct result of said injuries plaintiff became immediately sick, nervous, sore and in great pain, and was thereafter continuously and totally disabled for a period beginning October 20, 1941, and ending December 29, 1942, a total of sixty-two weeks.
The petition further alleges that plaintiff filed with defendant the required notices and proofs of loss, demanded payment of the benefits due him, and otherwise complied with the insurance contract, but that defendant failed and refused, and still fails and refuses to pay the same to the plaintiff. The prayer was for judgment in the amount of $ 1612.50.
The original answer filed is not material except in that it did not contain the defense that notice of injury was not given within the time required by defendant's Constitution.
The amended answer admitted the residence of the parties, as stated; the issuance of the policy described, and that plaintiff had filed with defendant proofs of loss, and demanded payment of benefits thereunder, but denied that plaintiff had complied with the terms of the contract; denied defendant's indebtedness upon the certificate, and denied every other allegation in the petition contained. It was further alleged that by the terms of the contract, the certificate, the Constitution of defendant Order, its articles of incorporation and by-laws constituted the entire contract between the parties; denied the plaintiff had an accidental injury, as alleged, and stated that if he did, the disability resulting therefrom was not covered by the terms of the contract in that it did not result from accidental means alone, as provided in the certificate and Constitution, and independent of all other causes, but was contributed to by disease with which plaintiff was afflicted at the time; that if plaintiff had any such disability it was not such as to prevent him from prosecuting any and every kind of business pertaining to any occupation, nor was it such as was covered by the contract with the defendant, and denied that the disability, if any, had been continuous from the date of the accident.
The amended answer made the further defense that said Constitution provides that no suit shall be brought to recover any benefits under its certificate after six months from the date said benefits were disallowed by the Supreme Executive Committee of the defendant; that this action was not brought within said period; that said certificate provided that it should become effective at 12:00 o'clock noon on the day when such certificate was dated and executed at Columbus, Ohio, which was November 18, 1936, when it became an effective contract in the State of Ohio to be construed and interpreted according to the laws of that state; that the six months' limitation referred to had been upheld as valid under the laws of the State of Ohio; that for this reason this action cannot be maintained and should be dismissed.
The further defense pleaded was that defendant's Constitution required notice of the accident under which claim is made to be sent in writing to defendant within thirty days after the accident, containing the extent and particulars thereof, and that the giving of such notice is a condition precedent to recovery, and failure to give the same constitutes a forfeiture of all claims against the defendant after such injury; that no such notice was furnished the defendant within thirty days of the claimed accident and injury, wherefore, the plaintiff forfeited his said claim against the defendant.
Plaintiff's reply admits that the instruments referred to in the answer constituted the contract, except in so far as contrary to the law and public policy of Missouri; specifically denied the other allegations of new matter set up in the amended answer; states that if defendant's Constitution requires notice within thirty days as a condition precedent to recovery, and that failure of same would constitute forfeiture of claim, and if plaintiff did fail to give such notice within such time, defendant waived such requirement because defendant furnished plaintiff with blanks for such notice and proofs which were filled out and turned over to defendant, and retained by defendant without notice of objection that the same were not timely, and because thereafter defendant called upon plaintiff for further information with reference to said accident and injury, which was furnished by the plaintiff, and because prior to this action defendant denied liability on alleged specific grounds other than failure to give such notice within any specified time, and because in defendant's original answer hereto defendant denied liability on alleged grounds which did not include such failure of notice, and because defendant undertook to settle and compromise plaintiff's claim for a less amount, which offer of settlement was rejected. The reply further pleaded estoppel as to failure to furnish notice within thirty days because defendant had failed to furnish plaintiff a copy of the Constitution as required by the contract, and that plaintiff was ignorant of any such time limit provision, and acted in ignorance of any such requirement, and in reliance on the absence of any such requirement.
The reply states that the insurance contract did not become effective and binding upon the parties until the certificate was delivered to and accepted by the plaintiff, which took place at Jefferson City, Missouri, and such acceptance was the last act required to make the same complete, thereby making the contract one executed in the State of Missouri, to be interpreted and construed according to the laws of Missouri; that if defendant's Constitution contained special limitation for suits to be brought within six months after disallowance, as aforesaid, the plaintiff was without knowledge thereof, and denied that the same is a valid and enforceable provision under the laws of Ohio, and denied that this action can be maintained under the laws of Ohio; that prior to his application for the certificate he was a citizen of Jefferson City, Missouri; that defendant at the time maintained a local council there; that plaintiff there became a member of said lodge; and, further, that all the transactions on the part of plaintiff in reference to the procurement of said contract, payment of dues, premiums, etc., were performed at Jefferson City; that defendant was licensed to do business in Missouri under the laws thereof; that the place of performance of said contract was in Missouri; that under the laws of Missouri, the period of limitation for suit on such certificate is five years; that if defendant's Constitution contains the six months' limitation on suit, as aforesaid, and if said contract of insurance is an Ohio contract, such limitation is null and void as contrary to public policy in the State of Missouri, as declared in Section 3351, R.S.Mo.1939, Mo.R.S.A., which said section was enacted long prior to the issuance of said policy, and has been declared the established public policy of Missouri continuously ever since; that, further, said six months' period was an unreasonable limitation on the bringing of such an action.
For further reply plaintiff stated that defendant is estopped from asserting said six months' limitation as a defense in this case because defendant failed to furnish him a copy of said Constitution as therein required; that defendant knew of such special limitation and did not advise the plaintiff thereof; that the plaintiff was ignorant thereof and acted in ignorance of such limitation, relying upon the absence thereof.
The reply further stated that it is provided in defendant's Constitution that suit on any such certificate might be filed and brought within the time allowed by the laws of the state wherein such action shall be filed and, therefore, any provision therein purporting to fix a shorter time than allowed by the statute of Missouri would be void and inoperative.
On appeal defendant first urges that the trial court erred in refusing to direct a verdict for the defendant at the close of all the evidence in that (1) it should have held valid the provision in the contract of insurance requiring suit thereon to be filed within six months after date of disallowance of plaintiff's claim; (2) that the court should have admitted the defendant's proffered proof that such...
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