The Standard Life and Accident Insurance Company v. Davis

• Decision Date: 08 July 1898
• Docket Number: 10579
• Parties: THE STANDARD LIFE AND ACCIDENT INSURANCE COMPANY v. EVE DAVIS
• Court: Kansas Supreme Court

53 P. 856

59 Kan. 521

THE STANDARD LIFE AND ACCIDENT INSURANCE COMPANY v. EVE DAVIS

No. 10579

Supreme Court of Kansas

July 8, 1898

Decided July, 1898.

Error from Bourbon District Court. J. S. West, Judge.

Judgment affirmed.

E. M Hulett, for plaintiff in error.

J. D McCleverty, for defendant in error.

OPINION

JOHNSTON, J.

This was an action by Eve Davis against the Standard Life and Accident Insurance Company to recover five thousand dollars upon an accident policy issued to Jonathan M. Davis, her husband, and payable to her in the event of his death.

The petition alleged that Jonathan M. Davis was accidently injured by the kick of a mule on January 21, 1893, and that afterward, about February 27, 1893, he accidently fell from a buggy; and that by reason of these injuries, and independent of other causes, his death resulted on March 15, 1893. It was also averred that proof of the injury and death, required under the terms of the policy, a copy of which was attached to the petition, had been duly and timely furnished, but that the defendant refused payment, although more than three months had elapsed since the receipt of the proofs of death.

In the answer of the Insurance Company it was alleged that the application for insurance made by Jonathan M. Davis represented and warranted that he had no other accident insurance, whereas in fact he had a policy in the Travelers' Insurance Company for the sum of five thousand dollars; and that by reason of the false statements and warranty the policy sued on was absolutely void. It was further averred that his death was not accidental, but was produced by causes not enumerated in the policy. Another defense was that notice was not given to the Company at the time and in the manner required by the policy. A still further defense was that the action had not been brought within the time limited by the policy; namely, within six months from the time when the right of action accrued. In reply to the answer Eve Davis alleged that the Insurance Company had full knowledge of the fact that the insured had prior insurance in another company, and that it waived that provision of the policy; that, with this knowledge, the Company accepted the premium and issued the policy, and had demanded and received proofs under it; and that by its conduct it was estopped to deny its liability under the policy.

The Insurance Company moved for judgment on the pleadings, but the motion was overruled, after which the cause was tried to a jury, and, upon the testimony, a verdict was returned in favor of the plaintiff below for $ 5,625, upon which a judgment was rendered.

The first objection is based on the overruling of the motion for judgment on the pleadings. The application for insurance, which contained representations that Davis had no other insurance, was made a part of the contract attached to the answer of the Insurance Company. There was no denial of the fact that Davis held a policy in the Travelers' Insurance Company when the contract in the present case was made, and hence the Insurance Company asked for judgment on the pleadings. We think the motion was correctly refused. That provision of the contract is one which the Company can waive, and its conduct may be such that it will be estopped to set up a breach of the warranty or the untruth of the representations. The reply of the plaintiff below pleaded a waiver by the Company, and also an estoppel; and, as an issue of fact was thereby joined for trial, the motion for judgment on the pleadings was necessarily denied. Did the pleadings show that the action was barred by the contract limitations? The time within which an action like this may be brought may be fixed by the contract itself, and when so fixed that limitation will supersede the ordinary limitation prescribed by the statute. Tho policy contained the following condition:

"Affirmative proofs of death or loss of limb or sight or duration of disability must also be furnished to said company within two months from the time of death or loss of limb or sight or of the termination of disability; else all claims based thereon shall be forfeited. Legal proceedings for recovery hereunder shall not be brought until after three months from the date of filing proofs at this Company's home office, nor brought at all unless begun within six months from the time when the right of action shall accrue."

This action was not commenced until six months and fourteen days after the death of Davis had occurred. The contention is that the right of action accrued at the time of the death, and was therefore not brought within the time limited in the policy. When the action accrued must be determined from the provisions of the policy. As will be seen, two limitations are provided: One, that an action on the policy cannot be brought until three months after the time of filing proofs and another that it must be brought, if at all, within six months after the right of action accrues. The intention of the parties to this contract is not hard to understand. Evidently it was intended that a remedy upon the policy should be suspended for three months after the proofs were filed in the Company's office, and that the period of limitations would not begin to run until the time when the right to enforce the remedy had arrived. The right of action certainly did not accrue when the death occurred, for the right to bring the action did not then exist. A liability, even, did not exist at the time of the death, nor until it was ascertained and determined in accordance with the provisions of the policy. A remedy is not available when the...