Metro. Accident Ass'n v. Froiland

• Citation: Metro. Accident Ass'n v. Froiland, 161 Ill. 30, 43 N.E. 766 (Ill. 1896)
• Decision Date: 28 March 1896
• Citation: 43 N.E. 766,161 Ill. 30
• Parties: METROPOLITAN ACCIDENT ASS'N v. FROILAND.
• Court: Illinois Supreme Court

161 Ill. 30

43 N.E. 766

METROPOLITAN ACCIDENT ASS'N

v.FROILAND.

Supreme Court of Illinois.

March 28, 1896.

Appeal from appellate court, First district.

Assumpsit by Myrtle Froiland against the Metropolitan Accident Association on a policy of insurance. From a judgment of the appellate court (59 Ill. App. 522) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.Smith, Shedd, & Underwood, for appellant.

James Smith and C. S. Darrow, for appellee.

Appellee brought suit in the circuit court of Cook county on a certificate of membership issued by appellant, a mutual benefit association, to Herman Martin Froiland, the husband of appellee. The member, Froiland, died from poison which he drank by accident, intending to drink distilled water. By mistake he drank chloral instead. His written application for the certificate contained the following: ‘I agree that the insurance shall not be held to extend * * * to poison in any way taken, administered, absorbed, or inhaled.’ Also: ‘I agree that any failure on the part of myself, my heirs, legal representatives, or beneficiaries, to comply with the terms, provisions, conditions, and limitations of the by-laws (as they now exist or may hereafter be amended by the members of the association)’ etc., ‘shall work a forfeiture of my membership.’ The certificate issued on the application provided for the payment, in case of the death of the member through external, violent, and purely accidental means, of $5,000 to the plaintiff within 90 days of the receipt or satisfacotry proofs of death. The certificate contained also the following provisions: ‘An immediate written notice by the member or his representative to the association in Chicago, stating time, place, and manner and nature of injury, and the certificate of a surgeon who has examined said injury as soon as his services could be secured, are conditions precedent to recovery, unless compliance therewith is impossible. In such event said notice to be given as soon as possible. The consideration for this insurance is and shall be the warranties and agreements contained in the application herefor, which, with the by-laws of the association now in force, or hereafter enacted by the members of the association, are made a part hereof, and the payment, when due, of the various calls which may have been made hereon.’ The by-laws provided, among other things, as follows: ‘12. (a) The certificates of this association shall provide against all forms of bodily injuries induced by external, violent, and accidental means, except as follows: (b) The benefits under the certificate of this association shall not extend to any case in which there shall be no external or visible signs of bodily injury, nor to death or disability happening directly or indirectly in consequence of disease or bodily infirmity, hernia, orchitis, or taking of poison, or contact with poisonous substances, or inhaling gas, or by any surgical operation, * * * suicide (sane or insane). * * * The benefits shall not be held to extend to mysterious disappearances, or to any case of death or disability the nature, cause, or manner of which is unknown or incapable of direct and positive proof.’‘19. (b) Fatal injury. In case of immediately fatal injury, notice of the accident must be furnished without unnecessary delay, and unless direct and affirmative affidavits, proving the date, place, cause, manner of death, also location and occupation of deceased at time of injury,shall be furnished to this association within three months of the date of said death, all claims under such certificate shall be waived and forfeited to the association.’‘22. Suits. (a) No suits shall be commenced or maintained against this association unless the same shall be commenced within thirty days from and after the date of the refusal of the association to entertain a claim or pay an award. The failure of the association to pay a claim within sixty days from the date of filing with the association of proofs thereof shall be construed by the member as a refusal on the part of the association to pay said claim, and no suit or proceeding at law shall be brought by said member, his heirs, executors, administrators, or assigns, unless the same shall be commenced within thirty days from the expiration of the said sixty days hereinbefore mentioned.’ The member, Froiland, died on the 27th day of February, within a few hours after the accident, and was at the time in good standing in the association. No written notice of the alleged accident was ever given by the plaintiff to the defendant, nor was any certificate of any attending surgeon or physician furnished to the defendant, nor were any proofs of loss filed with the defendant. On the 21st or 22d day of March, 1893, the plaintiff, with her attorney, went to the office of the defendant, and they were then and there notified that the defendant would not pay the claim, and refused to entertain it. The plaintiff began this action on the 5th day of May, 1893. Her declaration sets forth the certificate, the portion of the application which has been quoted above; alleges that the plaintiff died from the effect of poison taken by him accidentally, and in place and instead of distilled water, but says that he did not die from ‘poison in any way taken, administered, absorbed, or inhaled, within the meaning of said words as used in his said application for membership’; alleges the waiving by the defendant of any proof of death of Froiland, and that she, the plaintiff, ‘has observed and kept all things in the said policy of insurance contained on her part to be kept and performed.’ To this declaration pleas were filed, consisting-First, of the general issue; and, second, of a special plea that the suit was not begun within 30 days from the refusal of the defendant to entertain the plaintiff's claim. To this special plea the plaintiff replied-First, that there was no such by-law limiting the time within which to bring suit; second, that she was prevented by fraud and false representations of the defendant from bringing her action within the time provided by the by-law. To the last special replication the defendant demurred, but the court overruled the demurrer, and issue was joined. A jury was waived, and the court found the issues for the plaintiff, and gave judgment for the amount designated in the certificate, with interest and costs. On appeal the judgment was affirmed in the appellate court, and the defendant appealed to this court.

CARTER, J. (after stating the facts).

The principal question in this case is like the one involved in Insurance Co....