McFarland v. United States Mutual Accident Association

• Decision Date: 09 July 1894
• Parties: McFarland v. United States Mutual Accident Association, Appellant
• Court: Missouri Supreme Court

27 S.W. 436

124 Mo. 204

McFarland v. United States Mutual Accident Association, Appellant

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from Andrew Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

Thomas & Dowe and Booher & Williams for appellant.

(1) No notice whatever having been given of the accident or injury the claim, if one ever existed, is invalidated and no recovery can be had in this case. 2 May on Ins. [3 Ed.] secs. 460, 465; Laforce v. Ins. Co., 43 Mo.App. 527; Traske v. Ins. Co., 29 Pa. St. 198; Ins. Co., v Kyle, 11 Mo. 289; Reynolds v. Association, 1 N.Y.S. 738. (2) The word "immediately" means within a reasonable time and the delay may be so great that it may be held as a matter of law that the notice was not in time. Cooke on Life Ins., sec. 115, p. 211; Railroad v. Burwell, 44 Ind. 460; 2 May on Ins. [3 Ed.], sec. 462; Ins. Co., v. Kyle, 11 Mo. 289. (3) The evidence in this case is not sufficient to authorize the court to submit to the jury the question as to whether plaintiff gave immediate notice in writing addressed to the secretary of defendant at New York, of the death of Thomas McFarland, and is not sufficient to support the finding of the jury that such notice was given. (4) Plaintiff having pleaded specifically in her petition and again in her reply that she did furnish to defendant within six months from the happening of the accident direct and affirmative proof of the death of Thomas McFarland, evidence of a waiver of proof of death within six months was not admissible, and it was error to submit to the jury the question as to whether or not the defendant had waived the furnishing of proof of McFarland's death within six months from the happening of the accident, because the evidence did not tend to show performance; it clearly showed non-performance, and sought to show an excuse for non-performance, which is not admissible. Oakman v. Ins. Co., 9 R. I. 365; Ins. Co., v. Kyle, 11 Mo. 278; Russell v. Ins. Co., 55 Mo. 593; Lanitz v. King, 93 Mo. 517; Mohney v. Reed, 40 Mo.App. 109; Eiseman v. Ins. Co., 74 Iowa 11. (5) Waiver or estoppel can not arise by implication alone, except for some conduct which induces action in reliance upon it to an extent that would render it a fraud to recede from what the party has been induced to expect. Williams v. Ins. Co. 39 F. 170; Ins. Co., v. Fay, 22 Mich. 467; Colonious v. Ins. Co. 3 Mo.App. 56; Leigh v. Ins. Co., 37 Mo.App. 548. (6) The letter claimed by plaintiff to have been received by her from defendant and which is relied upon by her to show a waiver of proof of death within six months from the happening of the accident, if such letter had been received by her, is not a waiver, does not constitute a waiver, and does not contain a suggestion or intimation that the defendant would not require a full and strict compliance with all the terms, conditions and requirements of the certificate, especially in regard to furnishing proof of death within six months from the happening of the accident. Ins. Co., v. Oates, 86 Ala. 558; Ins. Co., v. Lawrence, 2 Pet. 25; Murphy v. Ins. Co., 7 Allen, 239; Ins. Co. v. Sorsby, 60 Miss. 313; Grigsby v. Ins. Co., 40 Mo.App. 283; DeSilver v. Ins. Co., 38 Pa. St. 130-134; Traske v. Ins. Co., 29 Pa. St. 198; Mueller v. Ins. Co., 87 Pa. St. 399; Maddox v. Ins. Co., 39 Mo.App. 204; Weidert v. Ins. Co., 19 Or. 261; Engelbritain v. Ins. Co., 58 Wis. 301; Knudsen v. Ins. Co., 75 Wis. 198; Connell v. Ins. Co., 18 Wis. 387; Blossom v. Ins. Co., 64 N.Y. 162; Blakely v. Ins. Co., 20 Wis. 209; Ins. Co. v. Walser, 22 Ind. 85; 2 May on Ins. [3 Ed], sec. 471. (7) An act relied upon to show a waiver must, to be binding as such, have been done with full knowledge of all material facts, otherwise it is no waiver. Cooke on Life Ins., sec. 102; 2 May on Ins. [3 Ed.], sec. 506; Bennecke v. Ins. Co., 105 U.S. 355; Dyas v. Hanson, 14 Mo.App. 375; Phillips v. Ins. Co., 14 Mo. 231; Boyd v. Ins. Co., 90 Tenn. 212. (8) The defendant will not be held to have waived a forfeiture or a right of which it was ignorant at the time of doing the thing relied upon as a waiver. Ins Co. v. Wolff, 95 U.S. 320; Bennecke v. Ins. Co., 105 U.S. 355; Bacon on Benefit Societies and Life Ins., sec. 423; Ryan v. Ins. Co., 46 Wis. 671. (9) A notice of loss and proof of loss are separate and independent requirements of the policy, and notice of death, if such notice was given, will not satisfy the condition requiring proof of death. O'Reilly v. Ins. Co., 60 N.Y. 169; DeSilver v. Ins. Co. 38 Pa. St. 130; Cooke on Life Ins., sec. 114; 2 May on Insurance [3 Ed.], sec. 460; Bacon on Benefit Societies, sec. 403. (10) The defendant will not be held to have waived the giving of notice of the accident and injury on the ground that by its conduct plaintiff was lulled into a sense of security on that point where such conduct occurs after the expiration of the time within which the notice can be given. Ins. Co. v. Kyle, 11 Mo. 290; 2 May on Ins. [3 Ed.], sec. 464; Gale v. Ins. Co. 33 Mo.App. 672. (11) Plaintiff did not introduce or offer any evidence to show what the principal sum represented by the payment of $ 2 by each member in division C of the defendant would be; neither did she introduce or offer any evidence to show what would be the principal sum represented by an assessment of $ 2 upon the members of divisions AAA, B, C, D and E. Therefore, if she can recover all, she is only entitled to nominal damages. O'Brien v. Society, 117 N.Y. 319; Martin v. Ins. Co., 29 N.Y.S. R. 421; Cram v. Ins. Co., 33 N.Y.S. R. 670; Ball v. Association, 64 N.H. 291; Newman v. Association, 72 Iowa 242.

James W. Boyd for respondent.

(1) The case was tried twice, with a verdict in favor of plaintiff both times. It was tried accurately, correctly, legally, without an error, as against appellant, and the judgment of the trial court should be affirmed. Herndon v. Ins. Co., 45 Mo.App. 426; Taylor v. Temperance Union, 94 Mo. 35; Lueder's Ex'r v. Ins. Co., 12 F. 465. "The sum recovered should be for the maximum insured." 12 F. 472, supra. (2) Instruction number 1 given on the part of respondent is correct, and the facts upon which a verdict in favor of the respondent is therein predicated are fully proved by the evidence in the case. (3) The letter of the company in response to respondent's third letter is evidence of waiver of proof within the time specified by the certificate of membership, and is such as to lead a reasonably prudent person to believe that strict compliance with the provisions of the certificate App. of membership in reference to proofs would not be required by the company. Fulton v. Ins. Co., 51 Mo. 463; Loeb v. Ins. Co., 99 Mo. 50; St. Louis, etc., v. Bessell, 41 Mo.App. 426; Maddox v. Ins. Co., 39 Mo.App. 204; McCullough v. Ins. Co., 113 Mo. 606; also cases cited on this subject in appellant's brief. (4) The reply sets up the fact of waiver, but, even if it did not, the law has been so thoroughly settled in this state that waiver of notice or proofs may be proved under allegations of "performance," that nothing need be said on this subject. McCollough v. Ins. Co., 113 Mo. 600; Fulton v. Ins. Co., 51 Mo.App. 463, and cases cited. (5) The appellant can not repudiate its own doctrine and its own indorsement of the correctness of the theory embodied in the respondent's instructions. Whitmore v. Lodge, 109 Mo. 36; Harris v. Hays, 53 Mo. 90; McGonigle v. Dougherty, 71 Mo. 259; Bank v. Hammerslough, 72 Mo. 274; Smith v. Culligan, 74 Mo. 387; 91 Mo. 628; Bates v. McGoon, 85 Mo. 580; Noble v. Blount, 77 Mo. 235; Holmes v. Braidwood, 82 Mo. 610; Reilly v. Railroad, 94 Mo. 600; Bank v. Armstrong, 92 Mo. 265; Crutchfield v. Railroad, 61 Mo. 255; Davis v. Brown, 67 Mo. 313; Richardson v. Palmer, 36 Mo.App. 88; Martinowsky v. City, 35 Mo.App. 70. (6) There can be no question but the death of Thomas McFarland was caused by the injury received by falling from his wagon. Respondent's claim is absolutely just, and ought to be paid. The defense is more technical than real. The granting or refusing a new trial in such cases rests peculiarly within the discretion of the trial court, and, unless it is manifest that the trial court has abused its discretion or that injustice has been done, its ruling will not be interfered with. McCullough v. Ins. Co. 113 Mo. 606. The appellate court will not determine disputed questions of fact. Ervin v. Railroad 96 Mo. 290; Caruth-Byrnes Co. v. Walter, 91 Mo. 484; Schad v. Sharp, 95 Mo. 573; Skinker v. Haagsma, 99 Mo. 208; Harrison Wire Co. v. Hardware Co., 97 Mo. 289. (7) The judgment is, beyond doubt, for the right party, and this court will not set it aside, except for very cogent reasons. Appellant must show the judgment to be wrong. Hedecker v. Ganzhard, 50 Mo. 154; Glass Co. v. Machine Co., 88 Mo. 67; Ghio v. Beard, 11 Mo.App. 21; Brown v. Railroad, 20 Mo.App. 427; Fell v. Coal Co., 23 Mo. 216; Bassett v. Glover, 31 Mo.App. 150; State ex rel. v. Benedict, 51 Mo.App. 642; Phillips v. Bachelder, 47 Mo.App. 52. "Where upon the whole record the judgment is manifestly for the right party, it will not be reversed, although some errors may have intervened." 47 Mo.App. 55.

OPINION

Macfarlane, J.

The defendant is an accident insurance company, doing business on the assessment plan, and in June, 1886, issued and delivered to Thomas McFarland, plaintiff's husband, a beneficiary certificate wherein, for a sufficient consideration, it promised to pay to plaintiff $ 3,000 within sixty days after proof that Thomas McFarland shall have sustained bodily injuries effected through external, violent and accidental means, and such injuries shall have occasioned death within ninety days after the happening thereof. The said certificate contained a further agreement on the part of...