Kephart v. Continental Casualty Company, a Corporation

Decision Date23 April 1908
Citation116 N.W. 349,17 N.D. 380
CourtNorth Dakota Supreme Court

Appeal from District Court, Wells County; Burke, J.

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


George K. Shaw, for appellant.

In the absence of a statute a policy may limit the time for suit thereon. Kiisel v. Mutual Reserve Life Ins. Co., 107 N.W. 1027; 28 Cent. Digest, see Insurance 1545.

Contract is completed at the place and when the proposals of one party are accepted by the other. 1 May on Ins. (4th Ed.) section 43, 66; Marden v. Hotel Owners Ins. Co., 52 N.W 509.

Where a policy is not binding until countersigned, it takes effect where countersigned. Pomery v. Manhattan Life Ins Co., 40 Ill. 398; Hyde v. Goodnow, 3 N.Y. 266; Lamb v. Bowser, 7 Bissel, 315; Tuttle v. Iowa Ins. Co., 104 N.W. 1131; Stephens v. Capitol Insurance Co., 54 N.W. 139; Commonwealth Fire Ins. Co v. Knabe & Co., 50 N.E. 516.

J. J Youngblood, for respondent.

Unless the laws of a foreign jurisdiction are alleged and proved, the law of the forum prevails. National German American Bank v. Lang, 2 N.D. 66, 49 N.W. 414; Sandmeyer v. Dakota Fire & Marine Ins. Co., 50 N.W. 353; Morris v. Hubbard, 72 N.W. 894.

FISK, J. FISK, J. concurs, SPALDING, J. (concurring specially.)



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 entered accordingly. Thereafter a motion for new trial was made and denied, and this appeal is from such order and from the judgment.

Appellant assigns error as follows: (1) The court erred in overruling the defendant's motion made at the close of the plaintiff's case to direct the jury to find a verdict in its favor and against the plaintiff; (2) the court erred in overruling the defendant's motion made at the close of all the testimony to direct a verdict in favor of the defendant; (3) the court erred in directing a verdict for the plaintiff; (4) the evidence is insufficient to justify the verdict; and (5) the court erred in overruling the defendant's motion for a new trial.

Regarding the first assignment of error it is appellant's contention that no recovery can be had under said policy because proof of claim was not made to the company within 30 days from the date of the accident, and also because suit was not commenced within nine months after the death of the insured. It is in effect conceded that, if the statute of this state (sections 5978, 5371, Revised Codes 1905) has any application, such contention is not sound; but it is argued that the policy was delivered in the state of Illinois, and hence is governed by the laws of that state. Conceding that the policy is an Illinois contract does not aid appellant, as it wholly failed to allege or prove the law of that state. This was necessary Bank v. Lang, 2 N.D. 66, 49 N.W. 414; Sandmeyer v. Insurance Co., 2 S.D. 346, 50 N.W. 353; Morris v. Hubbard, 10 S.D. 259, 72 N.W. 894. In Bank v. Lang it was said: "Where a suitor desires to take advantage of the laws of another jurisdiction, it is incumbent upon him to allege and show what the laws are in such other jurisdiction, and set forth wherein they differ from the law of the forum." Such, in effect, are the holdings in the other cases above cited; and we do not understand that appellant's counsel challenges the correctness of these decisions, but, on the contrary, expressly recognizes their binding force. In the face of this admission we are at a loss to know how appellant's counsel hopes to maintain his contention. There is no attempt in the answer to allege the existence in Illinois of a statute different from that in this state. Furthermore, the proof thereof is wholly insufficient. At the conclusion of plaintiff's testimony appellant's counsel moved for a directed verdict, and at the same time called to the court's attention the case of Insurance Co. v. Whitehill, 25 Ill. 466, which decided that a limitation clause in a policy requiring suit to be brought upon the same within one year after the loss or damage occurs was valid. This decision was made in 1861, and it is contended that this was sufficient proof of the statute law of Illinois in 1903 at the time the policy in suit was issued. The trial judge was not asked to take judicial notice of the laws of Illinois as disclosed by this decision; but, even if he had been expressly so requested, we should be required to hold such proof wholly insufficient. Nearly 42 years elapsed between the decision in that case and the issuance of the policy in suit. Furthermore there was no foundation laid for such proof by any allegation in the answer, and, as before stated, this was essential. We conclude, therefore, that the rights of the parties are governed by the laws of this state, and that under such laws the proof of claim was presented and the action commenced in ample time.

It is next urged as a ground why defendant's motion for a directed verdict should have been granted that the evidence discloses that the insured was not injured in the line of his duty. The proof shows that he was employed as a brakeman on a freight train known as "Extra East." It also appears that his train was backed in on a side track at Balfour to permit train No. 108, which was due there soon, to...

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