Contois v. State Mut. Life Assur. Co.
| Decision Date | 26 April 1946 |
| Docket Number | No. 8861.,8861. |
| Citation | 156 F.2d 44 |
| Parties | CONTOIS v. STATE MUT. LIFE ASSUR. CO. OF WORCESTER, MASS. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Alvin L. Hansen and Roland Towle, both of Chicago, Ill., for appellant.
Vincent O'Brien and Virgil C. Lutrell, both of Chicago, Ill., for appellee.
Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
Plaintiff is the designated beneficiary in a life insurance policy issued by defendant, upon which this suit was instituted. The complaint contained two counts, one predicated upon the face or principal amount of the policy. Judgment was entered upon this count and has been satisfied. The other count, designated as Count 2, sought recovery in the amount of $4,000, upon an agreement attached to the main policy which insured against injuries sustained through accidental means and resulting in death under certain specified conditions. The court below, on defendant's motion, dismissed this count for failure to state a cause of action. From such dismissal plaintiff appeals.
The pertinent language of the provision declared upon is: "If * * * the death of the insured occurred (occurs) * * * as the result of * * * bodily injuries sustained * * * and effected solely through external, violent and accidental means, directly and independently of all other causes, within ninety days after such injury was sustained, * * * the Company agrees that, subject to the conditions and provisions specified herein, it will pay * * *."
According to the allegations of the complaint, the policy was in effect at all times relevant to this suit. On September 29, 1943, the insured was riding on a railway passenger car operated in the State of Minnesota, when said car accidentally left the track upon which it was traveling, was wrecked, and thereby the insured was violently thrown about and against parts of said car. The complaint continues: "By the sole means of and due directly to said accident, * * * the insured was greatly injured, bruised and maimed in and about his body, arms and legs, evidenced by visible contusions and wounds on the exterior of his body, and an injury, to-wit: a perforation of a certain gastric ulcer in the stomach of the insured, was effected, sustained and contracted, on or about to-wit: February 4, 1944, by the sole means of and due directly to said accident, which perforation, directly and independently of all other causes, resulted in the death of the insured from general peritonitis * * on February 10, 1944."
Defendant in its motion to dismiss asserted the complaint failed to state a cause of action because (1) "said count shows on its face that the death of the insured did not occur within ninety days after the alleged injury was sustained," and (2) "said count shows on its face that the death of the insured did not result from injuries effected solely through external, violent and accidental means, and directly and independently of all other causes." The lower court dismissed the complaint upon the ground first stated but found it unnecessary to consider or decide the second.
As shown from the allegations of the complaint, the accident relied upon occurred September 29, 1943, the injury sustained occurred February 4, 1944, and death resulted February 10, 1944. No question is raised as to the validity of the 90-day provision, but the sole controversy is as to when it commenced to operate. Plaintiff contends that it started to run on February 4, 1944, the date of the alleged injury. If so, death occurred within the 90 day period, in fact, within six days. On the other hand, defendant contends that it started to run on September 29, 1943, the date of the alleged accident. If so, it is equally obvious that death did not occur within the 90-day period.
A decision of the question presented depends upon the meaning of the phrase, "within ninety days after such injury was sustained." Plai...
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Kirk v. Financial Sec. Life Ins. Co.
...and until very recently every jurisdiction faced with a challenge to these provisions had upheld them. (Contois v. State Mut. Life Assur. Co. (7th Cir. 1946), 156 F.2d 44, 46 (Ill.); Spaunhorst v. Equitable Life Assur. Soc. of United States, (8th Cir. 1937), 88 F.2d 849, 851 (Mo.); Barnett ......
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Hawes v. Kansas Farm Bureau
...and until very recently every jurisdiction faced with a challenge to these provisions had upheld them. (Contois v. State Mut. Life Assur. Co. (7th Cir.1946), 156 F.2d 44, 46 (Ill.); Spaunhorst v. Equitable Life Assur. Soc. of United States (8th Cir.1937), 88 F.2d 849, 851 (Mo.); Barnett v. ......
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Kuhlmeier v. Hazelwood School Dist., 83-2039C(1).
...Practice and Procedure: Civil § 1361 at 634 (1969). See Contois v. State Mut. Life Asur. Co., 66 F.Supp. 76 (D.C.Ill.1945), aff'd, 156 F.2d 44 (7th Cir.1946); Duval v. Bathrick, 31 F.Supp. 510 (D.C.Minn.1940). Therefore, defendants' Rule 12(b) motion is properly before this Court. Moreover,......
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Texas Taco Cabana, L.P. v. Taco Cabana of New Mexico, CIV. A. SA-02-CV-120.
...and thus, as having been timely presented. See Contois v. State Mut. Life Assurance Co., 66 F.Supp. 76, 77 (N.D.Ill.1945), aff'd, 156 F.2d 44 (7th Cir.1946). Notably, Counter-Defendants included failure to state a claim upon which relief may be granted under Rule 12(b)(6) as their first aff......