Dinnie v. United Commercial Travelers
| Decision Date | 18 November 1918 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Grand Forks County, Honorable Charles M. Cooley, Judge.
Reversed.
Reversed and remanded. Appellant allowed statutory costs on this appeal.
O'Connor & Johnson, for appellant.
In an action to recover upon a policy for accident insurance, the complaint must show by proper allegations the occupation in which the insured was engaged at the time of the accident, or death, and it should negative extra or increased hazard, when a smaller sum is recoverable as a result. American Acci Co. v. Carson, 99 Ky. 441, 59 Am. St. Rep. 473.
In this case the policy provides that no action can be maintained after the expiration of six months after notice of disallowance of claim. This action was not brought until long after six months succeeding such notice.
This limitation begins to run on the date of the receipt of notice by the insured. Switchmen's Union v. Colehouse, 227 Ill. 561, 81 N.E. 696; Cook v. N. P. R. Co. 32 N.D. 340, 155 N.W. 867; Johnson v. Dakota F. & M. Ins Co. 1 N.D. 167; Fullman v. New York Union, 7 Gray, 61 66 Am. Dec. 462, 7 Ann. Cas. 918.
The argument of public policy is to be received and considered with much caution.
It is the function of courts to interpret the law, and the interpreters of the law "have not the right to judge of its policy." Roberts v. Cannon, 4 Dev. & B. L. 267; Civ. Code, chap. 19, § 4978.
"The language of subsequent statutes cannot be controlled by any supposed policy of previous ones." Sutton v. Hayes, 17 Ark. 462; Goodrich v. Russell, 42 N.Y. 184; State v. Cram, 16 Wis. 347, 288 F. 447; Central R. Co. v. Hamilton, 71 Ga. 465; Billingslea v. Baldwin, 23 Md. 85; Sutherland, Stat. Constr. § 274.
If the so-called policy of the law is resorted to, and an attempt made to ascertain and follow it, the result would come within the condemnation that such would tend to a stricter interpretation of plain, unambiguous terms, words, and phrases, than otherwise. 2 Sutherland, Stat. Const. § 369, p. 711; First Nat. Bank v. Ludvickson, 8 Wyo. 236, 80 Am. St. Rep. 928, 56 P. 994.
The term "Insurance Law" includes decisions as well as statutes. Fraternal benefit societies are therefore exempt. Miller v. Dunn, 72 Cal. 462, 1 Am. St. Rep. 69, 14 P. 29; Jams v. Broadway Roller Rink, 136 Wis. 595, 118 N.W. 170; Johnson v. Humboldt, 91 Ill. 92; Johnson v. Fidelity Co. 239 Ill. 509; Vincent v. Mutual Ins. Co. 74 Conn. 684, 51 A. 1066.
In an action upon a policy of accident insurance, the complaint must contain allegations to show that death was the result of external, violent, and accidental means, and these allegations and facts should be proved upon the trial. Switchman's Union v. Colehouse, 227 Ill. 56, 81 N.E. 696; Kiesee v. Mutual, 134 Iowa 54, 197 N.W. 1027; Summons v. M. W. A. (Mo.) 172 S.W. 492; Newman v. R. R. Asso. 42 N.E. 650; Hester v. Fidelity & C. Co. 69 Mo.App. 197.
Murphy & Toner, for respondent.
Conditions as to increase of the hazard, under all classes of insurance, have been held to be conditions subsequent, and it is not only unnecessary for plaintiff to plead a compliance therewith, but it is necessary, in order that defendant may take advantage of their breach, that they be specially pleaded in the answer. 1 Cyc. 286; 2 Clement, Fire Ins. p. 310; Fishler v. California Ins. Co. 66 Cal. 178; German Ins. Co. v. Stewart, 13 Ind.App. 627, 42 N.E. 286; Pierce v. Ins. Co. 123 Mass. 572; New York v. Ins. Co. 3 Abb. App. Dec. 251; Newmann v. Ins. Co. 17 Minn. 123; Lounsbury v. Protection Ins. Co. 8 Conn. 459; Standard L. etc. Ins. Co. v. Keen, 11 Tex. Civ. App. 273; Phoenix Ins. Co. v. Stork, 120 Ind. 444; Phoenix Ins. Co. v. Rickel, 119 Ind. 155; Rediker v. Queen Ins. Co. (Mich.) 65 N.W. 105; Roussel v. Ins. Co. 41 N.Y.S. 279.
Where a subject is treated in a general manner, it will not be supposed that it was the intention to abrogate particular legislation as to the details, which had been given attention, applicable only to a part of the same subject. Ex parte Crow Dog, 109 U.S. 556; State v. McCurdy, 62 Minn. 509, 64 N.W. 1133; State v. Judge, 38 Mo. 529; Brown v. Commissioners, 21 Pa. 37; State v. Treasurer, 41 Mo. 16; Fosdick v. Perrysburg, 14 Ohio St. 472; Thompson v. State, 60 Ark. 59, 28 S.W. 794; Mills v. Sanderson, 68 Ark. 130, 56 S.W. 779; Home for Inebriates v. Reis, 95 Cal. 580, 44 P. 238; People v. Hutchinson, 172 Ill. 486, 50 N.E. 599; Kelly v. School Directors, 66 Ill.App. 134; Rankin v. Cowden, 66 Ill.App. 137; Arnold v. Council Bluffs, 85 Iowa 441, 52 N.W. 347; Boyd v. Randolph, 91 Ky. 472, 16 S.W. 133; Music v. R. Co. 114 Mo. 309, 21 S.W. 491; State v. District Ct. 14 Mont. 452, 37 P. 9; Mantle v. Largey, 15 Mont. 116, 41 P. 1077; Rymer v. County, 12 L.R.A. 192, 142 Pa. 108; Hayes v. Arrington, 108 Tenn. 494, 68 S.W. 577; People v. Commissioners, 7 Utah, 279, 26 P. 577; State v. Corson, 6 Wash. 250, 33 P. 428; State v. Purdy, 11 Wash. 343, 44 P. 857; Colvert v. Winsor, 26 Wash. 368, 67 P. 91; State v. Hobe, 106 Wis. 411, 82 N.W. 336.
There is nothing mysterious about the rules of law applicable to pleading in this class of cases.
The general rules of pleading applicable in suits on life insurance policies are also applicable to suits on accident and benefit policies. 25 Cyc. 916; 29 Cyc. 222-225; 1 Cyc. 285.
The action is one to recover $ 6,300 with interest from the 9th day of November, 1916, alleged to be due upon a certain accident insurance policy issued by the defendant to plaintiff. The complaint, in substance, alleges the defendant is an Ohio corporation authorized to do business in the state of North Dakota; that it is a fraternal benefit association engaged in the business of insuring its members against injury and death, and has authority so to do. The complaint contains allegations as to the time when the plaintiff was received into the association as a member through the Minot council No. 277 of Minot, North Dakota; the issuance to the plaintiff of the policy describing it; the compliance of the plaintiff, during his lifetime, with the articles of association of the defendant and compliance with the regulations and by-laws in force at the time of the issuance of the certificate, and those thereafter adopted, and that the plaintiff performed all the agreements and conditions of the certificate. The complaint further shows that the plaintiff died on or about the 9th day of November, 1916, but not from any other causes excepted in said certificate or the constitution or by-laws of said defendant, and further shows notice of death of the plaintiff was furnished to the defendant within a time described and also delivered to the defendant due proof of the death of the plaintiff. Complaint further shows the defendant has money in the treasury sufficient to pay the plaintiff's claim. It alleges the proper demand for the payment of the amount of the policy and the refusal of the payment thereof by the executive committee of the defendant, and shows that the beneficiary named in the policy is the mother of the plaintiff.
The defendant demurred to the complaint on the ground that the same does not state facts sufficient to constitute a cause of action. The plaintiff came within what was denominated Class A by the provisions of the constitution of the defendant at the date of the certificate, part of which reads thus: "Class A insured members shall be indemnified in accordance with the terms hereinafter set out in this article against the result of bodily injury hereinafter mentioned, effected through external, violent, and accidental means, herein termed the accident which shall be occasioned by the said accident alone and independent of all other causes."
The complaint contains no allegations that the death of the insured was the result of an accident or that it was caused through external, violent, and accidental means. An allegation of this character and to this effect in the complaint is indispensable in order that the complaint may show the liability of the defendant under the terms of the policy and in accordance with the application, by-laws, and constitution which is a part of the contract. The plaintiff claims this point was up before the trial court or mentioned in his presence prior to the time of decision on the demurrer and should not be here on appeal. The complaint alleges "that said John Dinnie died on or about the 9th day of November, 1916, that not from any other causes excepted in said certificate or the constitution or by-laws of said defendant." The plaintiff, in effect, admits that if the above allegation is not sufficient to meet the objection by the defendant that the complaint contains no allegation of death by external, violent, and accidental means, then it is clearly demurrable.
It is clear to us the above allegation is not sufficient and it, in no manner, shows the death to have been the result of accident or through external, violent, and accidental means. In this respect, it is clear the demurrer should have been sustained.
The only remaining question to be considered is that relating to the time of the bringing of the action. The defendant claims the plaintiff has no right to maintain the action, not having commenced the same before the Statute of Limitation had expired, as fixed by the contract of insurance, which was within six months from the time of the notice of the disallowance of the claim. As near as we are able to determine from the limited record before us and so far as insurance is...
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