Lyon v. TRAVELERS'PROTECTIVE ASS'N OF AMERICA

• Decision Date: 10 April 1928
• Docket Number: No. 2687.,2687.
• Citation: 25 F.2d 596
• Parties: LYON v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.
• Court: U.S. Court of Appeals — Fourth Circuit

25 F.2d 596 (1928)

LYON v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.

No. 2687.

Circuit Court of Appeals, Fourth Circuit.

April 10, 1928.

R. C. Kelly and Chas. A. Hines, both of Greensboro, N. C. (Peacock, Dalton & Lyon, of High Point, N. C., and Hines, Kelly & Boren, of Greensboro, N. C., on the brief), for plaintiff in error.

Oscar L. Sapp, of Greensboro, N. C. (King, Sapp & King, of Greensboro, N. C., on the brief), for defendant in error.

Before PARKER and NORTHCOTT, Circuit Judges, and SOPER, District Judge.

PARKER, Circuit Judge.

This was an action at law, instituted by Roberta T. Lyon, as plaintiff, against the Travelers' Protective Association of America, a fraternal benefit society incorporated under the laws of Missouri. The purpose of the action was to recover on an accident insurance contract in the sum of $10,000 issued on the life of her husband, in which she was named as beneficiary. At the conclusion of the testimony the trial judge granted a motion to nonsuit, and entered judgment dismissing the action. The correctness of this ruling is the only question presented by the assignments of error. For convenience, we shall refer to the parties as plaintiff and defendant, as they appeared in the court below.

By the certificate of membership under which plaintiff's husband was insured, the constitution and by-laws of the association were incorporated into the contract between the parties. Article XIII, section 1, thereof contained the following provisions, viz.:

"The association will pay for bodily injuries causing disability, loss of either hand, foot, arm, leg, sight of either eye, or death only in those cases where the injury causing the disability * * * or death is caused by external violent and accidental means independently of all other causes, and is the sole cause of the death or * * * disability, and shall independently of all other causes immediately, continuously, and wholly disable the member from transacting any and every kind of business pertaining to his occupation, or shall be the sole cause of his death, * * * within six months after such injury. This association shall not be liable, in case of injuries, fatal or otherwise, inflicted by a member in good standing on himself while sane or insane, or injuries of which there are no visible marks upon the body (the body itself not being deemed such a mark in case of death), nor shall the association be liable in case of * * * death * * * or disability, when caused wholly or in part by any bodily or mental infirmity or disease, dueling, fighting, wrestling, or in acting as an aviator or balloonist, or soldier or sailor, by participation in war or riot, or in aerial navigation or aeronautics of any kind, either as passenger, operator, or assistant, or in public or agreed automobile racing, or by wrecking, mining, blasting, the moving or transportation of gunpowder or dynamite or other explosive substances, murder, disappearance or hazardous adventure; nor shall the association be liable for injury causing death, loss of either hand, foot, arm, leg, sight of either eye or disability resulting from an altercation or quarrel, voluntary overexertion (unless in a humane effort to save human life), voluntary or unnecessary exposure to danger, or to obvious risk of injury." (Italics ours.)

By section 7 of the same article it was provided that no action against the association for the recovery of any claim arising under a certificate of membership or the constitution and by-laws should be sustained unless commenced within six months after the refusal of the association to pay same. It was admitted on both sides that the action was instituted more than 6 months and less than 12 months after the association refused payment. The contention of defendant was that the death of plaintiff's husband was not covered by the provisions of the by-laws quoted above, and that the action could not be sustained, because not instituted within 6 months after rejection of the claim.

The facts established with regard to the death of insured were as follows: On the night of December 2, 1925, he attended a supper given by one of his friends at a country lodge near High Point, N. C. This lodge was a considerable distance from the main highway, and was reached by a new dirt road, which had been cut through the woods. It had been raining all day, and the road was slippery, and the loam in the woods was wet and soft. After the supper, insured, with a number of his friends, attempted to return to High Point. He was driving a heavy sedan automobile, and in the rain and darkness of the night he missed the road and drove out into the woods, a distance of 100 feet or more. When he discovered his predicament he attempted to drive back into the road, but the softness of...