Connecticut General Life Ins. Co. v. Allen
| Decision Date | 26 April 1933 |
| Docket Number | No. 9614.,9614. |
| Citation | 64 F.2d 840 |
| Parties | CONNECTICUT GENERAL LIFE INS. CO. OF HARTFORD, CONN., v. ALLEN. |
| Court | U.S. Court of Appeals — Eighth Circuit |
G. L. De Lacy, of Omaha, Neb. (Claude H. Voorhees, of Hartford, Conn., and J. A. C. Kennedy and Yale C. Holland, both of Omaha, Neb., on the brief), for appellant.
Dana B. Van Dusen, of Omaha, Neb. (Francis A. Brogan and Alfred G. Ellick, both of Omaha, Neb., on the brief), for appellee.
Before STONE, GARDNER, and SANBORN, Circuit Judges.
Appellee as plaintiff brought this action against appellant to recover on a policy of accident insurance issued by appellant. For convenience the parties will be referred to as they appeared in the lower court.
Insured was the husband of plaintiff, and plaintiff was named as the beneficiary in the policy. The loss or disability against which defendant insured is described in the following pertinent provisions of the policy:
The petition alleged that plaintiff was designated as the beneficiary in the policy; that by the policy defendant contracted for and undertook to pay to the beneficiary therein named the sum of $12,400 in the event of the death of the insured due to "pyogenic infections which shall occur simultaneously with and through accidental cut or wound"; that on or about the 1st day of February, 1927, the insured died of pyogenic infection which occurred simultaneously with and through accidental cuts or wounds inflicted on said insured on the 10th day of January, 1927, while undergoing the extraction of an impacted molar tooth; that said extraction was attended with extreme difficulty, and that the gum tissues were cut and wounded, and that the instrument broke through the jaw bone inner layer or the mandible and opened passages into the tissues of the neck, resulting in the infection of the neck, which infection thereafter extended down the neck tissues into the chest cavity, then into the base of the heart and then into the right pleural cavity and the pericardial sac, resulting in pleurisy with effusion and pericarditis with effusion, terminating in the death of said insured; that said cuts and wounds and infection were not intended, not usual, not expected, not foreseen, and were accidental, and were bodily injuries effected solely through accidental means and were the proximate cause of the death of said insured.
By its answer defendant preserved its special appearance theretofore filed and objected to the jurisdiction of the court, for the reason that it had not been served as by law required, and for the further reason that at the time of the commencement of the action, and at the time of the original service of process upon it, it was not conducting any business in the state of Nebraska and had not theretofore been doing business in said state, and that it was not doing business in the state of Nebraska at the time of the execution of the policy sued upon, but that the policy was executed in the state of New York; that when the policy sued upon was issued defendant maintained and still maintains its home office at Hartford, Conn., but that the policy was entered into and executed in the city of New York, state of New York, and was governed by the laws of that state; that the policy provided that no action should be brought to recover on it prior to the expiration of sixty days after proof of loss had been properly made and filed, "nor shall such action be brought at all, unless brought within two years from the expiration of the time within which proof of loss is required by the policy"; that these provisions of the policy were valid and binding under the laws of the states of New York and Connecticut, and that the action was not brought within the period provided for in the policy, nor was the proof of loss made within the required time, and hence the action was barred. The answer in addition to pleading the bar of limitation provided in the policy, also pleads that the action was barred by the statute of limitations, and also contains denial that the insured came to his death as the result of pyogenic infections occurring simultaneously with and through accidental cut or wound, and in effect denied all the material allegations of the petition, except certain formal allegations.
On the trial, at the close of all the testimony, defendant moved for a directed verdict on the grounds: (1) That the court was without jurisdiction of the person of the defendant; (2) that the action was not brought within two years from the expiration of the time within which proof of loss was required by the terms of the policy, and hence the action was barred by the provisions of the policy; and (3) that the evidence did not establish that the insured came to his death as the result of pyogenic infection occurring simultaneously with and through accidental cut or wound. The motion was denied, and the case submitted to the jury, and a verdict returned in favor of plaintiff. From the judgment entered thereon defendant has perfected this appeal, urging: (1) That the policy provisions limiting suit to two years were binding, and barred the right to maintain this action; (2) that the court was without jurisdiction of the person of defendant, and its special appearance and objection should have been sustained; (3) that the evidence was insufficient to support the verdict and judgment; and (4) errors in the rulings upon evidence.
In the briefs filed by counsel on either side the question of the jurisdiction of the court and the contractual limitation of...
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