Brown v. Fraternal Acc. Ass'n of America

• Decision Date: 03 November 1898
• Citation: 55 P. 63,18 Utah 265
• Court: Utah Supreme Court
• Parties: MARY E. BROWN, RESPONDENT v. THE FRATERNAL ACCIDENT ASSOCIATION OF AMERICA, APPELLANT

55 P. 63

18 Utah 265

MARY E. BROWN, RESPONDENT v. THE FRATERNAL ACCIDENT ASSOCIATION OF AMERICA, APPELLANT

Supreme Court of Utah

November 3, 1898

Appeal from the District Court, Salt Lake County, Hon. A. N. Cherry Judge.

Action by plaintiff as beneficiary under an accident policy insuring plaintiff's husband against personal bodily injury. From a judgment for plaintiff defendant appeals.

Affirmed.

Messrs Williams, Van Cott & Sutherland, for appellants.

The statute, Compiled Laws of 1888, Sec. 3204 provides for two classes of notices in a summons. In an action on a contract to recover money or damages, the notice should be that unless defendant appears, plaintiff will take judgment for the sum demanded in the complaint. In other actions a notice that plaintiff will apply to the court for the relief demanded.

This was an action arising upon a contract for the recovery of money, but the notice contained in the summons was that appropriate to the other class of actions.

The provisions of the statute with respect to these notices is not directory but mandatory. Lyman v. Milton, 44 Cal. 630; Sidwell v. Shumacher, 99 Ills., 433; Ward v. Ward, 59 Cal. 139.

The service of the summons was wholly insufficient.

The statute, Comp. Laws, 1888, Sec. 3208, provides that when the defendant is a foreign corporation and has an acknowledged agent in the territory, the service may be made on such agent; or if no such agent is found, on any person in its employ, or who has any of its property in charge.

The return of the officer recites that the defendant had no authorized agent or officer in the territory. That it was a foreign corporation located at Westfield, Massachusetts. That the service was made by delivering to and leaving with W personally, as special agent of said defendant, etc.

The service was not sufficient. 22 A. & E. Enc. of Law, 132, and authorities cited.

Where a policy of accident insurance makes it a condition precedent to the right of the beneficiary to recover, that notice of the accident shall have been given within a reasonable time of the happening thereof, with the particulars, it devolves upon the plaintiff to show that such notice was given strictly in accordance with the conditions of the policy. Upon failure of such proof no recovery can be had. Heywood v. Me. Accident Assn., 85 Me. 289; Kimball v. Accident Assn., 90 Me. 183; 2 May on Insurance, 465; 2 Biddle on Insurance, 985; 2 Woods on Insurance, 930; 4 Joyce on Insurance, Secs. 3278, 3280; Patten v. Liability Co., 20 Ir. L. R. 95; Cowley v. Accident Assn., I. C. & Ellis, 597 (L. R. Q. B.); Blossom v. Lycoming Ins. Co., 64 N.Y. 162; Gould v. Ins. Co., 90 Mich. 302; Martin v. Acc. Assn. 16 N.Y. 279; Simons v. Assn. 71 N.W. 254.

That such conditions are strictly enforced see: Riddlesberger v. Ins. Co., 7 Wall. 386; Blakely v. Ins. Co., 20 Wis. 205; Wheeler v. Ins. Co., 82 N.Y. 543; Klein v. Ins. Co., 104 U.S. 88; Thompson v. Ins. Co., 104 U.S. 252.

When a contract expressly requires notice to be given at a particular place, mailing it at the place of loss is not a compliance. 2 May on Insurance, Sec. 461; 2 Beach on Insurance, Sec. 1201; Central City Ins. Co. v. Oats, 6 S. 83; Patrick v. Farmers Ins. Co., 43 N.H. 621.

It is error for the court to give instructions which are inconsistent or contradictory of each other, and this being shown the judgment must be reversed. 2 Thompson on Trials, Secs. 23-26.

Messrs. Powers, Straup & Lippman, for respondent.

The return of the officers serving the summons shows that he also at the time of service of summons, served a certified copy of the complaint.

The relief demanded in the complaint was for judgment in the sum of $ 2,000 and interest, so that when defendant was notified in the concluding portion of the summons "that plaintiff will apply to the court for the relief demanded in the complaint," it was notified that judgment would be taken against it if it failed to appear, for that was the relief therein demanded. It was tantamount to the statement of the amount of judgment in the said concluding portion of the summons.

Our statute provides that the Code of Civil Procedure is to be liberally construed. 2 C. L. Utah, 1888, Sec. 2987; Rev. Stats., Sec, 2489; Clark v. Palmer, 90 Cal. 504.

A foreign corporation cannot escape service by refusing to appoint an agent on whom process may be served as required by the law of the state. Service may be made on the agent who transacted its business. Funk v. Anglo-Am. Ins. Co., 27 Fed. R., 336; Societe, etc. v. Milliken, 135 U.S. 304.

Under subdivision 5, Sec. 3208, C. L. Utah, 1888, it has been held that service on an attorney employed in the collection of certain claims and intrusted with the possession of certain property, was good. Saunders v. Ins. Co., 6 Utah, 431.

See also State v. U. S. Mutual Acc. Assn., 31 N. W., 229.

But whatever defect there was, if any at all, in the phraseology of the summons, or of its service, it was cured by appellant answering the complaint and proceeding to trial upon issues therein joined.

We contend there was a substantial compliance with the terms of the policy in respect to the notice. The mere notice to the local agent would not be sufficient, but notice to the local agent and a letter written by him to the proper officer of the defendant is sufficient. 2 Biddle on Insurance, Sec. 988, and cases there cited; Niblock on Ins., Sec. 415, and cases there cited; 2 Wood on Ins., p. 938; 2 May on Ins., Sec. 463.

Letters placed in designated repositories or delivered to the postman, when duly addressed and stamped, afford prima facie evidence that they were duly received by the addressee. Rosenthall. v. Walker, 111 U.S. 185; Schutz v. Jordan, 141 U.S. 213.

The denial of the defendant that it received it but raised a conflict in the evidence, and it was for the jury to determine the fact. Rosenthal v. Walker, Supra; 2 Rice on Evidence, p. 1009; Howard v. Dalby, 61 N.Y. 362.

Respondent's cause did not accrue until the death of Brown. Until then she was not called upon to act. Cooper v. Accident Assn., 16 L. R. A., 138; Globe, Acc. Ins. Co. v. Gerisch, 163 Ills., 625: Konrod v. United Cos. etc., 21 S. 271; Provident Co. v. Baum, 29 Ind. 240.

BARTCH, J., delivered the opinion of the court. ZANE, C. J. and MINER, J., concur.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

The plaintiff brought this action to recover $ 2,000 upon an accident insurance policy issued by the defendant, a fraternal and mutual accident association, to plaintiff's husband, Campbell M. Brown, insuring him against personal bodily injury. In case of death resulting within ninety days after an accidental injury, to the insured, that sum was, by the terms of the policy, payable to his wife the plaintiff. The policy also provided for the payment of certain sums to the insured in case of disabilities resulting from accidental injuries within a certain time after the accident.

The proof shows that, on February 19, 1894, while the policy was in force, the insured, walking along a street of Salt Lake City, accidentally fell and received injuries which resulted in his death on March 16, 1894. Under the terms of the policy, written notice, of any accident to the insured, was to be given the "Association at Westfield, Massachusetts, within ten days after the date of the accident and injury for which claim of indemnity or benefit is made." It appears from the testimony of Theedore W. Whitely, who was the company's agent for Utah, that he, the agent, was notified of the accident, to the best of the witness' recollection, on the same day of the occurrence, and that thereupon he immediately notified the company thereof by letter. The receipt of the letter was denied by the secretary of the association. On March 21, 1894, the company and its agent were notified of the accident to and death of the insured, in writing, by letter from the beneficiary, and the association then disclaimed liability under the policy. At the trial the jury returned a verdict in favor of the plaintiff for $ 2,000. Judgment was entered and the defendant appealed.

BARTCH, J., after stating the case as above, delivered the opinion of the court.

The first question presented in the brief of counsel for the appellant is one respecting the service of summons, but in the oral argument it was admitted that respondent's position on that question is correct, and it will therefore be regarded as eliminated.

The claim in this case is principally resisted by the appellant, upon the ground of a failure of compliance with certain conditions expressed in the insurance policy, as conditions precedent to liability. The paragraph of the policy, under which the most important question arose. reads:

"Written notice shall be given the said association at Westfield, Massachusetts, within ten days of the date of the accident and injury for which claim of indemnity or benefit is made, with full particulars thereof, including a statement of the time, place and cause of the accident, the nature of the injury, and the full name and address of the insured and beneficiary, and unless such notice and statement is received as aforesaid, all claims to indemnity or benefit under this certificate shall be forfeited to the association."

This requires that written notice of the accident, with a statement of certain facts, shall be given to the association at Westfield, Massachusetts, within ten days of the occurrence, and forfeiture of all claims under the certificate is the penalty provided for failure to give such notice. Full particulars of the accident are required to be given with the notice, and yet it is quite conceivable that accidents will happen, under such circumstances, as to render the...