Inter-Ocean Cas. Co. v. Wilkins

• Decision Date: 26 July 1932
• Docket Number: No. 14147.,14147.
• Parties: INTER-OCEAN CASUALTY CO. v. WILKINS.
• Court: Indiana Appellate Court

96 Ind.App. 231

182 N.E. 252

INTER-OCEAN CASUALTY CO.

v.WILKINS.

No. 14147.

Appellate Court of Indiana, in Banc.

July 26, 1932.

Appeal from Warrick Circuit Court; U. W. Youngblood, Judge.

Action by Lucy Wilkins against the Inter-Ocean Casualty Company. From the judgment for plaintiff, defendant appeals.

Affirmed.

Embree & Baltzell, of Princeton, for appellant.

T. Morton McDonald, Douglas H. McDonald, and Sanford Trippet, all of Princeton, for appellee.

BRIDWELL, J.

Appellee brought this action on an insurance policy issued by appellant to James R. Wilkins, wherein appellee was named as beneficiary, and which policy (among other provisions) insured against the effects resulting directly and exclusively of all other causes from bodily injuries sustained during the life of the policy, solely through external, violent, and accidental means, and which provided that, if the death of the insured should result solely from such injury within 120 days from the date of the accident, the appellant would pay to the beneficiary the principal sum of $3,000.

The complaint was in one paragraph; appellant's answer thereto was in four paragraphs, including a general denial; appellee's reply to the second paragraph of answer was in two paragraphs; her reply to the third paragraph of answer was in three paragraphs; and to the fourth paragraph of answer she filed a reply in two paragraphs. One paragraph of each reply was in general denial. The sufficiency of each affirmative paragraph of reply was questioned by a demurrer. The demurrers were each overruled, and appellant excepted to each ruling.

The case was tried with a jury, which returned a verdict in favor of appellee for $3,330. Appellant duly filed its motion for a new trial, which was overruled and an exception taken. Judgment on the verdict followed, and from such judgment this appeal is prosecuted.

The errors assigned and relied upon for reversal are as follows: (1) The court erred in overruling the demurrer of the appellant to the second paragraph of appellee's reply to the second paragraph of appellant's answer to the complaint. (2) The court erred in overruling the demurrer of the appellant to the second paragraph of appellee's reply to the third paragraph of appellant's answer to the complaint. (3) The court erred in overruling the demurrer of the appellant to the third paragraph of appellee's reply to the third paragraph of appellant's answer to the complaint. (4) The court erred in overruling the demurrer of the appellant to the second paragraph of appellee's reply to the fourth paragraph of appellant's answer to the complaint. (5) The court erred in overruling appellant's motion for a new trial.

The complaint alleges in substance that the appellant is a corporation engaged in insuring persons against death and injury by accident; that on December 25, 1925, in consideration of the payment of certain stated monthly premiums, appellant executed its policy, whereby it insured one James R. Wilkins, beginning at noon on said day, and to continue so long as said Wilkins should pay the said monthly premiums; that by said policy appellant promised, in the event of accidental bodily injuries occurring to said insured, and resulting in the death of said Wilkins, within 120 days from the date of the accident, caused solely through external, violent, and accidental means, to pay to appellee, the wife of said insured, the sum of $3,000; that on the 23d day of September, 1927, and while said policy was in full force and effect, the said James R. Wilkins received accidental bodily injuries, solely through external, violent, and accidental means, which directly and exclusively of all other causes produced his death on September 30, 1927; that on the night of September 22, 1927, the said Wilkins, while in the discharge of the duties of his employment as a car inspector for the Southern Railway Company in its railroad yards at Princeton, Ind., was suddenly and violently caught and squeezed between two freight train cabooses while cutting out the yard air brake test line from a freight train in said yards; that the bodily injuries thus received caused his death; that the said James R. Wilkins and appellee each performed all of the conditions of said policy to be by them or either of them performed; that appellant failed and refused to pay said policy; and that the sum of $3,000 is long since past due and unpaid, and, by reason of unreasonable delay in the payment due, appellee is entitled to recover interest, etc. A copy of the policy sued on is made a part of the complaint.

The defense asserted in the second paragraph of answer is based upon the alleged failure to give notice of injury as required by the policy, and the affirmative reply thereto pleads facts contended by appellee to be sufficient to constitute an estoppel, and a waiver of any compliance with the provisions of the policy set out in said paragraph of answer.

This answer admits the issuance of the policy, the payment of all premiums thereon, and the death of James R. Wilkins on September 30, 1927. It alleges that the cause of action set out in the complaint is based upon the alleged fact that death was caused by an accident inflicted upon said James R. Wilkins on September 23, 1927; that appellant received no notice whatever of said alleged accident until the 5th day of November, 1927, and by reason thereof no liability results from the alleged accident and the subsequent death therefrom. The provisions of the policy set out in said answer are as follows:

“Written notice of injury or of sickness on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury, or within ten days after the commencement of disability from such sickness.

“In event of accidental death immediate notice thereof must be given to the company.

“Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the company at Cincinnati, Ohio, or to any authorized agent of the company, with particulars sufficient to identify the insured, shall be deemed to be notice to the company. 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.”

Appellee in her second paragraph of reply to this paragraph of answer averred that appellant, with full knowledge at all times as to all provisions of the policy, and after being duly notified, on or about November 4, 1927, of the accidental injury sustained by said insured and of his subsequent death resulting from said injuries, accepted said notice, and thereafter requested of appellee further and additional proofs of such accident and the injuries resulting therefrom; that in compliance with said request appellee at much trouble and expense did procure and furnish to appellant additional affidavits and proofs in support of her claim; that appellant thereafter, on or about December 17, 1927, after considering said proofs and the claim of appellee, denied all liability under said policy solely and wholly upon the ground that said death was not due to any accidental bodily injuries, and notified appellee of its denial of liability under said policy solely on said ground; that, by reason of the foregoing facts appellant is estopped from setting up lack of notice as a defense, and has wholly waived compliance with the provisions of said policy set up by said second paragraph of answer.

The overruling of its demurrer to this reply is the first alleged error assigned, presented, and relied upon for reversal by appellant.

The second paragraph of answer is based upon the theory that the failure to give notice of the alleged injury within 20 days after the alleged accident causing the injury bars any right of the appellee to recover on the policy in the absence of estoppel or waiver.

We must first determine whether the provisions of the policy relied upon and set out in said answer required that written notice of injury be given to appellant within 20 days after the date of the accident causing such injury where the complaint, as here, is by the beneficiary for the recovery of the principal sum provided by the policy to be paid in case of death of the insured from such injury within 120 days from the date of the accident.

The provisions of the policy concerning notice are to some extent uncertain. In event of accidental death, “immediate notice” is required; where claim is based on injury by accident, a notice within 20 days after the accident; where for disability from sickness, within 10 days after commencement of disability. No special provision is made for notice of death of insured resulting from accident where such death does not immediately follow the accident but occurs within the period of time fixed by the policy for liability on account of death. There is a provision in the policy providing that: “Strict compliance on the part of the insured and beneficiary with all the provisions of this policy is a condition precedent to recovery hereunder, and any failure in this respect shall forfeit to the company all right to any indemnity.”

[2] It is a well-established principle that courts will construe a contract of insurance liberally, so as to give it effect rather than to make it void, and conditions which create forfeitures will be construed most strongly against the insurer. Northwestern Mutual Life Ins. Co. v. Hazelett (1886) 105 Ind. 212, 4 N. E. 582, 55 Am. Rep. 192;National Live Stock Ins. Co. v. Owens (1916) 63 Ind. App. 70, 113 N. E. 1024, 1027;Maxwell v. Springfield, etc., Ins. Co. (1920) 73 Ind. App. 251, 125 N. E. 645;Fireman's Ins. Co. v. Savery (1924) 88 Ind. App. 296, 143 N. E. 612;Masonic Acc. Ins. Co. v. Jackson (1929) 200 Ind. 472, 164 N. E. 628, 61 A. L. R. 840.

[3] Appellee could not know whether she had a claim...