Western Commercial Travelers' Ass'n v. Smith, 931.

• Citation: 85 F. 401
• Decision Date: 14 February 1898
• Docket Number: 931.
• Parties: WESTERN COMMERCIAL TRAVELERS' ASS'N v. SMITH.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

85 F. 401

WESTERN COMMERCIAL TRAVELERS' ASS'N v. SMITH.

No. 931.

United States Court of Appeals, Eighth Circuit.

February 14, 1898

F. N Judson (C. S. Taussig and Louis R. Tatum, on the brief), for plaintiff in error.

S. L Swarts (E. M. Merriman and George H. Sanders, on the brief) for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

SANBORN Circuit Judge.

The Western Commercial Travelers' Association, the plaintiff in error, has sued out a writ to reverse a judgment against it upon a certificate of insurance against accident which it issued to Freeman O. Smith, one of its members, for the benefit of Sarah I. Smith, the defendant in error. A jury was waived, the court tried the case and made a special finding of the facts, and the error assigned is that the facts found do not support the judgment (1) because they show that immediate notice of the accident or injury was not given to the association, as required by the policy, and (2) because they fail to show that the death of the member was produced 'by bodily injuries effected by external, violent, and accidental means.'

These are the facts relative to the two questions thus raised which appear from the pleadings and the findings: The certificate upon which the suit is based secured to the member, Freeman O. Smith, indemnity in various amounts for total disability, for the loss of an arm or a leg, or one arm and one leg, and for the loss of both arms or both legs, by accident; and it also secured to his beneficiary, the defendant in error, indemnity for his death produced 'by bodily injuries effected by external, violent, and accidental means' alone. It contained this provision:

'In the event of any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, immediate notice shall be give in writing addressed to the secretary, at St. Louis, Missouri, stating the full name and address of the member, number of certificate, occupation, and name and address of the attending physician, with full particulars of the accident or injury, and failure to give such notice shall invalidate all claim under the certificate; and unless direct and affirmative proof of the death or duration of total disability shall be furnished the association within ninety (90) days from the happening of such accident, as per forms of proof furnished, and questions prepared on same by the board of directors of the association, then all claims under this certificate shall be waived and forfeited to the association.'

In the latter part of August, 1895, while this certificate was in force, Freeman O. Smith, who was a strong and healthy man, commenced wearing a pair of new shoes. About September 6, 1895, the friction of one of the shoes against one of his feet, unexpectedly and without design on his part, produced an abrasion of the skin of one of his toes. He gave the abrasion reasonable attention, but it nevertheless caused blood poisoning about September 26, 1895, which resulted in his death on October 3, 1895. Neither the deceased nor the defendant in error gave any notice of this accident or injury to the association before his death, but within a reasonable time thereafter due notice thereof and of her claim under the certificate was given to the association by the defendant in error.

The agreement of the parties was that the failure to give the notice required by this certificate should invalidate all claim under it, and there can be no question but that the service of this notice was a condition precedent to the enforcement of any such claim. Insurance Co. v. Kyle, 11 Mo. 278, 289; McCullough v. Insurance Co., 113 Mo. 606, 21 S.W. 207; McFarland v. Association, 124 Mo. 204, 27 S.W. 436. The real question here is, therefore, what was the notice exacted of the beneficiary by the contract and when was it to be given? The agreement was that, 'in the event of any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, immediate notice shall be given. ' In the interpretation of this provision, the fact must be borne in mind that all claims under this contract for accidents and injuries which do not result in death accrue to the member himself. The beneficiary of the death loss has no interest in them. It is only in a case in which results from an accident or injury that any claim in favor of the defendant in error arises. In the nature of things, she cannot know whether she will have a claim until the member whose life is insured for her benefit is dead. Must she give notice of the accident or injury on account of which her claim may arise before she knows whether or not it will ever come into existence? A provision which exacts such a notice should be plain, clear, and unambiguous. Forfeitures are not favored in the law, and a strained and unnatural construction must not be given to this contract in order to impose one here. A stipulation could have easily been drawn which would have plainly imposed upon this beneficiary the duty of giving such a notice. If this contract had simply omitted the words, 'or in case of death resulting therefrom' and had provided that, 'in the event of any accident or injury for which any claim shall be made under this certificate, notice of such accident or injury shall be given immediately after it happens,' there would have been no doubt that the beneficiary was required to notify the association of the accident as soon as it occurred. If it had required only that, 'in case of death resulting from any accident or injury for which any claim shall be made under this certificate, immediate notice shall be given,' it would have been equally certain that she was not required to give any notice until the death had supervened. As it stands, it seems to us to be intended to provide two different classes of notices for the two classes of claims,-- one an immediate notice of the accident or injury which does not result in death, the other an immediate notice of the death which results from such an accident or injury, to be given by the beneficiary as soon as it occurs. If this is not the correct construction of the provision, the words, 'or in case of death resulting therefrom,' are without significance or effect, because the stipulation, without those words, would require the beneficiary of a death loss to give notice of the accident or injury immediately after it occurred.

There is no better canon for the interpretation of contracts than the rule that the court may put itself in the place of the parties to the agreement at the time it was made, and may then consider how its terms affected its subject-matter, and ascertain what those who made it intended thereby. Accumulator Co. v. Dubuque St. Ry. Co., 27 U.S.App 364, 372, 12 C.C.A. 37, 41, 42, and 64 F. 70, 74; Westervelt v. Mohrenstecher, 40 U.S.App. 221, 227, 228, 22 C.C.A. 93, 95, and 76 F. 118, 121; Rockefeller v. Merritt, 40 U.S.App. 666, 675, 22 C.C.A. 608, 613, 614, and 76 F. 909, 915; Prentice v. Forwarding Co., 19 U.S.App. 100, 110, 7 C.C.A. 193, 298, and 58 F. 437, 443. When this is done, it can hardly be successfully maintained that the parties to this certificate intended to require the beneficiary of a loss by death under it to give notice of the accident or injury before the death occurred and before her claim arose. When the provision, 'in the event of any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, immediate notice shall be given,' is read in the light of the events to which it refers, and of the relation of the parties to the contract to each other, its natural and obvious meaning is that, in the event of any accident or injury which shall not result in death, immediate notice of such accident or injury shall be given, or, in the case of death resulting from any such accident or injury, immediate notice of such death shall be given, because in the one case it is the injury, and in the other it is the death, which conditions the existence of the claim. The conclusion is that this certificate required no notice of the accident or injury to be given to the association by the beneficiary of the death loss before the death occurred, and the due notice which the court finds she gave immediately after the death was a sufficient compliance with this stipulation...