Kephart v. Cont'l Cas. Co.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: FISK
• Citation: 116 N.W. 349,17 N.D. 380
• Parties: KEPHART v. CONTINENTAL CASUALTY CO.
• Decision Date: 23 April 1908

17 N.D. 380
116 N.W. 349

KEPHART
v.
CONTINENTAL CASUALTY CO.

Supreme Court of North Dakota.

April 23, 1908.

Syllabus by the Court.

[116 N.W. 349]

In an action upon an accident insurance policy, which contains a stipulation that satisfactory proof of claim must be furnished the company by the claimant within 30 days after the date of the injury, and also the further stipulation that no suit shall be brought under said policy unless brought within nine months from the date of the accidental injury, defendant denies any liability thereunder on account of a failure to comply with such stipulations. Defendant contends that the policy of insurance is an Illinois contract, and that under the statute

[116 N.W. 350]

of Illinois the limitations aforesaid are valid. Such defense is unavailing to defendant, as there is no allegation in the answer, and no proof in the record as to the existence of such a statute in said state, and, in the absence of such allegation and proof, the law of the forum controls.

Under the law of this state (Rev. Codes 1905, §§ 5978, 5371) the proof of loss under the policy was furnished and the action brought in ample time.

Defendant seeks to escape liability under such policy upon the ground that the insured at the time he met with the accident was not engaged in the line of his duty as brakeman, but this contention is overruled.

Defendant's contention that the insured was guilty of negligence which contributed to his injuries, and hence that the beneficiary cannot recover under such accident insurance policy, has no support in the evidence, and is therefore untenable.

The policy provides for payment of benefits only in case of personal bodily injury “through external, violent, and purely accidental causes.” It also provides that, “where the accidental injury results from unnecessary exposure to danger or to obvious risks of injury,” the amount payable shall be but one-tenth of the face of the policy. The policy contains no provision exempting the company from liability for negligence of the insured contributing to his injuries, and it will be presumed in the absence of proof to the contrary that the injuries were received through accidental causes.

At the conclusion of plaintiff's testimony defendant moved for a directed verdict in its favor, which motion was denied. Thereafter plaintiff moved for a directed verdict in her favor, which motion was granted. No request was made by defendant's counsel to submit any question of fact to the jury; hence defendant waived its right, if such right existed, to have submitted to the jury the question as to whether the injury was accidental, or whether it resulted from unnecessary exposure to danger or to obvious risks of injury within the meaning of the terms of the policy.

An assignment of error based upon the ruling of the trial court in directing a verdict, where no exception to such ruling was taken, cannot be considered.

It is contended that a certain portion of the unpaid premium on said policy should have been deducted from plaintiff's recovery. Held, that such contention is without merit, as there is no foundation in the pleadings for any such allowance or deduction, and no such question was presented to or passed upon by the trial court.

So-called specifications of error not embraced in the settled statement of the case will not be noticed, and an assignment of error based thereon cannot be considered.

Appeal from District Court, Wells County; Edward T. Burke, Judge.

Action by Mary Kephart against the Continental Casualty Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

George K. Shaw, for appellant. J. J. Youngblood, for respondent.

FISK, J.

This is an action upon an accident insurance policy issued by the defendant to one Earl C. Kephart; the plaintiff, Mary Kephart, being his mother and the beneficiary named in such policy. The face of the policy is $1,000, but it contains a stipulation that in case of accidental injury or loss resulting from unnecessary exposure of the insured to danger or to obvious risk of injury the amount payable shall be only one-tenth of the face of the policy, or, in this case, $100. The policy also contains a provision that satisfactory proof of claim must be furnished the company at its office at Chicago, Ill., by the claimant within 30 days after the date of the death of the assured. It also provides that no suit shall be brought against the company under said policy unless brought within 9 months from the date of the accidental injury. The insured was injured on August 14, 1903, and died the following day, and this action was commenced June 2, 1905. At the close of the testimony the trial court directed a verdict in plaintiff's favor for the full amount prayed for in the complaint, and judgment was...