Sovereign Camp of Woodmen of the World v. Mcdonald

• Decision Date: 08 January 1919
• Citation: 80 So. 566,76 Fla. 599
• Parties: SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. McDONALD.
• Court: Florida Supreme Court

80 So. 566

76 Fla. 599

SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. McDONALD.

Florida Supreme Court

January 8, 1919

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

Action by Anna McDonald against the Sovereign Camp of the Woodmen of the World. Demurrer to declaration overruled, judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

A clause in a certificate of life insurance which requires preliminary proof of death 90 days before suit shall be brought upon the certificate may be waived by the insurer and in case of such waiver suit may be brought 90 days after the death of the insured.

Where a party is not injured by the rulings of a trial court upon his pleas, and is not prevented from submitting the subject and matter of such pleas to the jury under such pleadings as secure to him the full benefit of his contentions, such rulings of the court do not present good ground for reversal.

Conditions precedent to the maintenance of a cause may be alleged by the complainant in general terms to have been complied with; but if the defendant desires to contest the fact of compliance by the plaintiff with any one or more of such conditions, he must aver in his plea definitely and specifically what conditions the plaintiff has not complied with, and which are made the subject of contest.

The purpose of all pleading under the system in force in this state is to arrive quickly and definitely at a certain and single material issue upon which the controversy may be determined.

Where an application for a certificate of life insurance in a fraternal life insurance company contains a clause certifying, agreeing, and warranting that the applicant is in sound health, of temperate habits, and has no disease or injury that will tend to shorten his life, and that the application to which he attaches his signature shall constitute the basis for and form a part of the beneficiary certificate, and further agreeing, certifying, and warranting that all the statements, representations, and answers in the application are full, complete, and true, and that any untrue statement or answer made by the applicant, or any concealment of facts in the application, intentional or otherwise, shall render the certificate void, and the certificate afterwards issued upon such application declares that the application constitutes the contract or agreement between the insurer and the insured, the statements and representations made by the applicant concerning his health and habits and the absence of injury or disease that will tend to shorten his life are warranties, and if such statements were untrue as made in the application they operate to defeat a recovery upon the certificate of insurance.

The burden of proof is upon the insurer, who pleads a breach of warranty to a declaration upon a certificate of life insurance.

A demurrer to a replication reaches back to a plea to which the replication is made.

COUNSEL A. B. & C. C. Small, of Lake City, for plaintiff in error.

Cone &amp Chapman, of Lake City, for defendant in error.

OPINION

ELLIS J.

The defendant in error brought an action in the circuit court for Columbia county against the Sovereign Camp of the Woodmen of the World upon one of its beneficiary certificates, which it had issued to C. L. McDonald, who was husband to Anna McDonald. The certificate was for $2,000, but it contained a provision that the member of the fraternity upon whose life the certificate was issued was entitled to participate in the beneficiary fund to the amount of $1,000, should his death occur during the first year of his membership. This certificate was issued in October, 1914.

McDonald died, so the declaration alleges, on May 27, 1915. The certificate also provided for the payment of $100 for the erection of a monument to the memory of the insured in case of his death.

The beneficiary certificate was attached to the declaration and by appropriate words made a part of it.

The certificate contains a provision to the effect that it is issued and accepted subject to all the conditions on the back of it, and a statement to that effect was signed by C. L McDonald. One of the conditions or agreements on the back of the certificate was as follows:

'(5) No legal proceedings for recovery under this certificate shall be brought within 90 days after the receipt of proof of death by the sovereign clerk, and no suit shall be brought upon this certificate unless said suit is commenced within one year from the date of death.'

The declaration alleges that the plaintiff, within a 'few days' after the death of C. L. McDonald, did procure and reduce to writing proof of his death, and delivered the same to the sovereign clerk of the defendant, who received the same according to the conditions and stipulations of the certificate; that within a 'few days' thereafter, without 'further objections to formalities of notice and proof of death,' the defendant denied its liability.

The action was begun on the 20th day of September, or on the 116th day after the death of McDonald.

A demurrer to the declaration was interposed on behalf of the defendant, upon the ground that the declaration did not show that the condition quoted had been complied with, and that the declaration affirmatively showed that the plaintiff had violated the agreement by bringing the action within 90 days after the receipt of the proof of the death of McDonald by the sovereign clerk. The demurrer was overruled, and such action is assigned as the first error.

Was the unqualified denial of liability by the defendant a waiver on its part of the agreement or condition that no legal proceedings for recovery under the certificate should be brought within 90 days after the receipt of proof of death by the sovereign clerk of the defendant?

The clause quoted is for the benefit of the insurer, and is intended to secure for him reasonable time in which to examine into the proofs of death and make independent investigations as to his liability upon the contract of insurance if he so desires. We do not regard the agreement as one which definitely fixes the maturity of the debt, like a promissory note. The debt matures upon the happening of the event named in the policy or certificate--that is, the death of the assured--where the holder has complied with the requirements of the order. See Sovereign Camp W. O. W. v. Hodges, 72 Fla. 467, 73 So. 347.

The agreement that proceedings shall not be brought upon the certificate within a certain time after proof of death submitted is binding upon the beneficiary, but it affects the remedy only, and may be waived by the insurer. Now an unqualified denial of liability waives preliminary proof of loss or death required by the policy. If proof of loss or death is waived, it is unnecessary to submit it. If it is unnecessary to submit it, it follows that so far as the clause refers to proof of death, as a time from which the right to sue accrues, it has been waived by the insurer and made as if it did not exist. To hold otherwise would be to say that waiver of preliminary proof of death could not be made by the insurer. The defendant refused to pay at all, and based its refusal upon some ground distinct from regularity of proof of death, or, as the declaration alleges, without 'further objection to formalities of notice and proof of death.'

If the beneficiary had verbally notified the clerk of the defendant of the death of the certificate holder, and the defendant thereafter had by letter denied liability upon the certificate, and expressly waived preliminary proof of death, it would be vain to say that preliminary proof must nevertheless be submitted in order that the defendant's liability on the policy might mature, because that would be equivalent to saying that preliminary proof of death could not be waived. But it is nowhere contended that such proof cannot be waived. That preliminary proof of death was submitted, before unqualified denial of liability on the certificate, cannot alter the effect of the waiver which renders such proof unnecessary. See Knickerbocker Life Ins. Co. v. Pendleton, 112 U.S. 696, 5 S.Ct. 314, 28 L.Ed. 866; Columbus Mut. Life Ass'n v. Plummer, 86 Ill.App. 446; Phillips v. United States Ben. Soc., 120 Mich. 142, 79 N.W. 1. Even if the unqualified denial of liability by the insurer is not a waiver of the entire clause which restrains all legal proceedings within 90 days, the time would run from the date of the death of the assured, which is the holding of the Iowa court upon whose utterances on this point the text in Bacon's Life and Accident Insurance, § 619, cited by counsel for plaintiff in error, seems to rest.

In McConnell v. Iowa Mut. Aid Ass'n, 79 Iowa, 757, 43 N.W. 188, Judge Beck, speaking for the court, said:

'If repudiation of liability dispensed with proof of death, * * * it cannot be said that defendant's denial * * * is such a repudiation of the contract as to authorize an action to be commenced prior to the time it is authorized by the terms of the policy. * * * We reach the conclusion,' said he, 'that plaintiff could not have commenced his action sooner than 45 days after the death of the assured.'

In this case action was commenced more than 90 days after the death of the assured, and preliminary proof of death was waived. See Taylor v. Glens Falls Ins. Co., 44 Fla. 273, 32 So. 887.

If the waiver was not a repudiation of the entire contract, and the defendant could yet claim its 90 days from the date of the death of the assured, as the Iowa court holds, it appears that this action was not prematurely brought, as the defendant contends, and the demurrer was correctly sustained. So the first assignment of error must fail.

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