Callen v. Massachusetts Protective Ass'n
| Decision Date | 08 February 1928 |
| Docket Number | No. 7658.,7658. |
| Parties | CALLEN v. MASSACHUSETTS PROTECTIVE ASS'N, Inc. |
| Court | U.S. Court of Appeals — Eighth Circuit |
George Siefkin, of Wichita, Kan. (Robert C. Foulston, W. E. Holmes, D. W. Eaton, Sidney L. Foulston, and Lester L. Morris, all of Wichita, Kan., on the brief), for plaintiff in error.
Joseph G. Carey, of Wichita, Kan. (R. R. Vermilion, Earle W. Evans, and W. F. Lilleston, all of Wichita, Kan., on the brief), for defendant in error.
Before VAN VALKENBURGH, Circuit Judge, and REEVES, and OTIS, District Judges.
From the action of the trial court in sustaining a demurrer to her petition, plaintiff sued out a writ of error. The parties will be referred to in this opinion as plaintiff and defendant, respectively. Such were the designations in the trial court.
The averments of the petition show that the plaintiff was the beneficiary in a policy of accident insurance, dated April 5, 1921, insuring plaintiff's husband, Rolland C. Callen, "against loss resulting from * * * bodily injuries effected directly and independently of all other causes by accidental means * * * and due solely to external, violent, and involuntary causes."
The policy had been issued by the Masonic Protective Association of Worcester, Mass., but the obligations thereof had been regularly assumed by the defendant.
Plaintiff alleged in her petition that "on or about the 4th day of December, 1922, the said Rolland C. Callen met his death by accidental means, due solely to external, violent, and involuntary causes, to wit, asphyxiation," and "that the plaintiff herein did not, until on or about the 1st day of December, 1924, learn that the death of the said Rolland C. Callen resulted directly from accidental means, due solely to external, violent, and involuntary causes as defined by said policy of insurance, but immediately upon learning of such facts, she caused her attorneys * * * to notify * * * the Massachusetts Protective Association, Inc., of the fact of said death and that claim would be made under the term of said policy, true and correct copies of which letters are attached hereto as Exhibits B and C and made a part hereof."
Exhibit C, referred to in the petition, being a letter to the defendant from the attorneys of the plaintiff, dated December 2, 1924, contained the following pertinent statement:
"Circumstances surrounding the death were such that the coroner's jury returned a verdict of suicide, which was accepted by the widow without investigation and no claim made under your policy."
The policy provisions devolved upon the beneficiary the duty to furnish the insurer affirmative proof of loss "within ninety days after the date of such loss," and stated that "failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible."
There was a further averment in the petition to the effect that, in replying to plaintiff's communications of December 1 and 2, 1924, the defendant had denied liability upon the sole ground that the policy had lapsed for nonpayment of premiums.
It is contended by the plaintiff that the notice of death was given in accordance with the terms of the policy. She asserts, moreover, that any defect of such notice was waived by the defendant when it denied liability on other grounds. These will be noticed in the opinion.
1. The parties are in agreement that the questions here involved are of contract. Policies of insurance, as other contracts, should be construed "according to the ordinary sense and meaning of the terms employed, and, if they are clear and unambiguous, their terms are to be taken in the plain, ordinary, and popular sense." St. Paul Fire & Marine Ins. Co. v. Ruddy (C. C. A.) 299 F. 189, loc. cit. 193. The policy provided that "affirmative proof of loss must be furnished * * * within ninety days after the date of such loss." This is a valid provision of the policy, and compliance therewith is a condition precedent to the enforcement of the policy. Travelers' Ins. Co. v. Nax (C. C. A.) 142 F. 653, loc. cit. 657, 658; 1 C. J. 471.
The plaintiff apparently understood and appreciated the force of this...
To continue reading
Request your trial
-
Guberman v. William Penn Life Ins. Co. of New York
...rule can apply it must appear that claimant was misled to his injury" (45 CJS, Insurance § 707, at 678, citing, Callen v. Massachusetts Protective Assn., 24 F.2d 694 [8th Cir.]; Globe & Rutgers Fire Ins. Co. v. Atl. & Gulf Shipping Co., 51 Ga.App. 904, 181 S.E. 310; Craddock v. Fidelity Lif......
-
Lemay Ferry Bank v. New Amsterdam Cas. Co.
... ... Ins. Co., 91 S.W.2d 160; Smith v. Mutual Ben. Health & Acc. Assn., 104 S.W.2d 754; Travelers' Ins ... Co. of Hartford v. Scott, 218 S.W ... Assn. v. New Amsterdam Cas ... Co., 45 F.2d 989; Callen v. Mass. Protective ... Assn., 24 F.2d 694; New Amsterdam Casualty Co. v ... ...
-
Capital Rental Equipment Co. v. Pacific Indemnity Co.
...waive anything; it merely denied coverage without assigning any reason therefor, as it could legally do. Callen v. Massachusetts Protective Ass'n, 8 Cir., 24 F. 2d 694. Furthermore, the authorities seem to hold that before the doctrine of waiver can apply, the claimant must be "misled to hi......
-
Felder v. Federal Crop Ins. Corporation
...loss." (Italics ours.) See, also, Harris v. North British & Mercantile Ins. Co., 5 Cir., 1929, 30 F.2d 94, 95; Callen v. Mass. Protective Ass'n. Inc., 8 Cir., 1928, 24 F.2d 694. The Regulations from which paragraphs 13 and 14 arise have the force and effect of law. Latgis v. United States, ......