Kennard v. Travelers Association

• Decision Date: 17 September 1931
• Citation: 157 Va. 153
• Court: Virginia Supreme Court
• Parties: WILLIAM CECIL KENNARD v. TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA.

Page 153

157 Va. 153

WILLIAM CECIL KENNARD v. TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA.

Supreme Court of Virginia, Staunton.

September 17, 1931.

Present, Prentis, C.J., and Campbell, Holt, Hudgins and Gregory, JJ.

1. MUTUAL INSURANCE — Members of Mutual Benefit Society Bound by Charter and By-Laws — Presumption of Knowledge of Charter and By-Laws. — Members of a mutual benefit society are bound by its charter and by-laws made pursuant thereto, and are conclusively presumed to have knowledge of them all.

2. MUTUAL INSURANCE — Construction of Policy in Favor of Members. — The certificates of membership or policies of insurance of members of a mutual benefit society in cases of doubt or ambiguity are to be construed liberally in favor of the assured but they must be construed in accordance with their terms as are other contracts.

3. INTERPRETATION AND CONSTRUCTION — Courts Not to Make Uncertain That Which Is Certain. — Courts should not make uncertain that which is certain, and they cannot make contracts for the parties.

4. CONTRACTS — Construction — Contract Must Be Ambiguous. — The province of construction lies wholly within the domain of ambiguity. When a provision is too plain to be misunderstood there is nothing to construe.

5. MUTUAL INSURANCE — Endorsement on Certificate of Membership that Benefits are Paid Subject to the Conditions, Exceptions and Limitations of the Constitution of the Society and Amendments Thereto. — No conflict is created by and no ambiguity arises out of the endorsement on the back of a certificate of membership in a mutual benefit society that the benefits are payable subject to the conditions, exceptions and limitations of the constitution of the society and the amendments thereto. The conditions and limitations of the policy include those appearing in the company's charter, its constitution and by-laws passed pursuant thereto.

6. INTERPRETATION AND CONSTRUCTION — Words and Phrases. — Words and phrases should receive primarily that construction which they commonly receive in the ordinary affairs of life.

7. INSURANCE — Construction of Policy — Ordinary Meaning of Terms. — 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.

8. ACCIDENT, CASUALTY, HEALTH AND INDUSTRIAL INSURANCE — Accident to Immediately and Continuously Disable Assured — Meaning of "Immediately." — "Immediately," as used in a provision of an accident insurance policy, providing that the injuries for which the insurer shall be liable shall immediately, wholly and continuously disable assured, in a majority of cases has been construed as an adverb of time, although in some cases it has been interpreted as signifying causation and not time. It is generally held that "immediately" so used does not mean instantaneously, and is not, on the other hand, equivalent to the phrase "within a reasonable time." It requires that the disability shall result presently and without any substantial interval. There must be continuity of disability.

9. ACCIDENT, CASUALTY, HEALTH AND INDUSTRIAL INSURANCE — Accident to Immediately and Continuously Disable Assured — Meaning of "Immediately" — Primary Definition. — Accident insurance policies usually contain the provision that the accidents which entitle assured to recover shall immediately, wholly and continuously disable assured. It is universally conceded that words carry with them their primary definition unless their context shows that this should not be done.

10. INSURANCE — Construction of Policy — Courts Cannot Make Contracts — Construed Liberally in Favor of Assured. — It is universally conceded that courts cannot make contracts for people and must construe them as written when they are plain upon their face, and this notwithstanding the equally well-established rule that contracts of insurance are to be, in doubtful cases, construed liberally.

11. ACCIDENT, CASUALTY, HEALTH AND INDUSTRIAL INSURANCE — Accident to Immediately and Continuously Disable Assured — Meaning of "Immediately" — Processes of Nature Doctrine. — Accident insurance policies usually contain a clause providing that the accidents which entitle assured to recover shall immediately, wholly and continuously disable assured. It has been held by some courts that a disability is immediate when it follows directly from the accident within such time as the processes of nature consume in bringing about from it total incapacity. But this process of nature doctrine did not commend itself to the Supreme Court of Appeals as a logical one.

12. ACCIDENT, CASUALTY, HEALTH AND INDUSTRIAL INSURANCE — Accident to Immediately and Continuously Disable Assured — Lapse of Twenty-Three Days between Accident and Disability — Case at Bar. — In the instant case plaintiff, a member of a benefit society, was suing the society for compensation for disability. Plaintiff was injured by striking his foot against the rocker of a chair. At the time this accident seemed to be too trivial to notice, but twenty-three days afterwards the foot became swollen and painful and a physician was summoned and the company notified. The company defended the action on the ground that the disability did not arise immediately, wholly and continuously from the accident.

Held: That there must be continuity of disability and an interval of twenty-three days between the accident and the disability is too long, and therefore plaintiff could not recover.

Error to a judgment of the Court of Law and Chancery of the city of Roanoke. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

B. E. Estes, for the plaintiff in error.

Murray A. Foster, Woods, Chitwood, Coxe & Rogers, John L. Walker and Holland, Lashly & Donnell, for the defendant in error.

HOLT, J., delivered the opinion of the court.

The plaintiff, Mr. Kennard, was a member in good standing of the Travelers Protective Association, a fraternal benefit society, chartered under the laws of the State of Missouri. His certificate of membership bears date April 3, 1916. On the night of August 6, 1929, he was injured by striking his right foot against the rocker of a chair. At that time this accident seemed to be too trivial for notice, but by August 29, 1929, this injured foot had become swollen and painful. On that day a physician was summoned and on September 6, 1929, the company was notified. His accumulated disability claims amount to $823.21. To his motion for judgment therefor the defendant demurred. Its demurrer was sustained; the case was dismissed, and is now before us on a writ of error.

Plaintiff's certificate of membership declares that he is "entitled to such benefits as may be provided in and by the constitution, by-laws and articles of incorporation of said association in force and effect at the time any accident occurs from which a claim for benefits arises.

"Benefits in case of death payable to Sarah Ellen Kennard his wife. This certificate, the constitution, by-laws and articles of incorporation of said association and application for membership signed by said member and all amendments thereto shall constitute the agreement between said association and said member and shall govern the payment of benefits, and any changes, additions or amendments to said constitution, by-laws or articles of incorporation, hereafter duly made shall bind said member and his beneficiary or beneficiaries, and shall govern and control the contract in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of said member's application for membership."

Across the face of the certificate itself this provision is written: "Any member meeting with an accident must notify the national secretary in writing within thirty days of such accident, giving full particulars of same and name of attending physician. In case of death the beneficiary shall give such notice. In case of failure to notify except because of unconsciousness or physical inability the member or his beneficiaries shall forfeit all rights to insurance benefits."

On its back this appears: "The following benefits are paid subject to the conditions, exceptions and limitations of the constitution of the association and amendments thereto, whenever a member in good standing shall, independently of all other causes, through external, violent and accidental means, receive bodily injury which shall solely and exclusively cause death or disability."

Then follows a statement of the sums which are to be paid for accidents of varied kinds.

These provisions appear as section 10, article 6, of the association's constitution:

"Whenever a class A member of this association in good standing shall through external violent and accidental means receive bodily injuries which shall independently of all other causes immediately, continuously and wholly disable him from transacting any and every kind of business pertaining to his occupation as shown by the records of this association, he shall be paid for the loss of time occasioned thereby the sum of $25.00 per week, not exceeding 104 consecutive weeks, and $12.50 per week for partial disability, not to exceed five consecutive weeks."

Pertinent also to this controversy is section 6, article 13, of said constitution which declares:

"Any member in good standing meeting with any accident, as described in this constitution, must call a regular physician or surgeon and notify the national secretary in writing within thirty days of the event causing the injury, giving full particulars of same and name of attending physician or surgeon. In case of death the beneficiary shall give such notice within thirty days of the event causing the injury or death. In case of failure to notify, except because of unconsciousness or physical inability,...