Williams v. Western Travelers Accident Association

• Decision Date: 04 December 1914
• Docket Number: 17,865
• Citation: 149 N.W. 822,97 Neb. 352
• Parties: LUCY E. WILLIAMS, APPELLEE, v. WESTERN TRAVELERS ACCIDENT ASSOCIATION, APPELLANT
• Court: Nebraska Supreme Court

149 N.W. 822

97 Neb. 352

LUCY E. WILLIAMS, APPELLEE, v. WESTERN TRAVELERS ACCIDENT ASSOCIATION, APPELLANT

No. 17,865

Supreme Court of Nebraska

December 4, 1914

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

Brome & Brome, for appellant.

Stewart Williams & Brown, V. A. Crum and L. R. Slonecker, contra.

SEDGWICK J. BARNES, FAWCETT and HAMER, JJ., not sitting.

OPINION

SEDGWICK, J.

The defendant is a mutual accident insurance company, organized under the laws of this state. It issued its policy of insurance upon the life of one Dan N. Williams. Afterwards, in January, 1910, Williams died in the city of Portland, Oregon. This action was brought by his widow, Lucy E. Williams, in the district court for Douglas county, upon the certificate of membership. The plaintiff recovered a verdict and judgment in the sum of $ 5,462.10. The defendant has appealed.

The defendant contends that the evidence is not sufficient to support the verdict; that the action was barred by the contract of limitation, not having been begun within one year from the time of making of proof of death; that the claim was settled and adjusted by the defendant before the commencement of the action; that the trial court erred in giving certain instructions to the jury, and also erred in refusing to give an instruction requested by the defendant.

1. The certificate of membership was issued in July, 1902. At that time agreements in contracts as to the time in which actions might be brought were contrary to public policy and void. This had been declared in several decisions of this court. Miller v. State Ins. Co., 54 Neb. 121, 74 N.W. 416. In the following year the legislature enacted a statute regulating such companies, which provided: "Any corporation, association or society organized or operating under this act may limit the time within which suit may be brought against it on any claim based upon its policies or certificates of membership, and after the expiration of the time thus limited shall not be liable thereon; provided such limitation shall be incorporated in, and form a part of the contract between the company, association or society and the assured or its members; and provided further that such limitation shall not be limited to a period of less than one year from the time such right of action accrues." Laws 1903, ch. 53, sec. 17. The act also provided that corporations, associations or societies before that time incorporated and doing business in the state might avail themselves of the provisions of the act by filing a certificate with the auditor of state, with the following proviso: "Provided this act shall not relieve any corporation, association or society now doing business in this state from the fulfilment of any contract heretofore entered into with its members under its policies or certificates of membership, nor shall any member be relieved thereby from his or her part of the contract." Laws 1903, ch. 53, sec. 3. The defendant company availed itself of these provisions and afterwards, in 1907, amended its by-laws by adding the following provision: "And no legal proceedings for recovery under any certificate of membership shall be brought within ninety days after the receipt of proof of loss at the office of the association, nor at all, unless begun within one year from the time that right of action accrues, as above stated." It is contended that this amendment of the by-laws was unreasonable as to the insured and not binding upon his beneficiary, but, without deciding this question, we prefer to place our decision upon the construction of the by-law, as amended, and its application in this case.

This action was begun in July, 1911, about 18 months after the death of the insured. The by-law, as amended, provides that no action could be begun more than a year after the cause of action accrued. It also provides that no action shall be begun "within ninety days after the receipt of proof of loss at the office of the association." The controversy upon this point is as to the time when the proof of loss was received at the office of the association, within the meaning of this contract.

The defendant's by-laws provide that it shall be the duty of the executive board to "decide on all proofs of accident and of death by accident." It seems that the secretary was not empowered to decide those matters. The plaintiff claimed that the death of the insured was caused by an accidental fall while alighting from a street car, on the 25th day of December, 1909, and that he died on the 3d day of January, 1910. The company's by-laws required that written notice of the accident must be received at the office within 15 days from the date of the accident, and that proof of death should be filed in that office within 30 days from the date of death. On the 18th of January, 1910, the plaintiff sent the defendant a formal statement showing the death of the insured. This statement was upon a blank furnished by the company, and was entitled "Claimant's preliminary statement," and stated that it was "made for the purpose of giving information to the said association to obtain benefits therefrom under final proofs to be hereafter furnished by me." Several affidavits were also submitted with the statement with a letter referring to the papers as "Claimant's preliminary statement," and requesting the defendant to correspond concerning the matter with Lee Meyers, of Portland, Oregon, who was plaintiff's nephew. Upon receipt of this letter Mr. Butts, the defendant's secretary, wrote to Mr. Meyers, stating that he had received a letter requesting the company to address Mr. Meyers. In this letter the secretary made no reference to the papers which he had received, and made no objection to the delay in furnishing what was to be considered as final proof, but said: "In connection with this matter will say that the evidence at hand indicates that Mr. Williams' death was due to natural causes."

About a month later the plaintiff wrote Mr. Butts a letter in which she said: "I received through Mr. L. H Meyers your statement saying you found that my husband Dan N. Williams died from natural causes. I just want to tell you that I would like to have you try the fall he had and see how many could live he fell on the back of his head hard enough to be heard on the other side of the street was picked up and brought to the house by one delivery man Mr. Gehr and his son both saw him fall. He was hurt so badly he could not see to read the next day and complained constantly of his head. He never laid down fifteen minutes after he got here until after he died. The poor man would look at me and say I tell you Mamma that did hurt my head then he would jump up and pull his clothes off and fight us but did not have any fever any time during the nine days he lived. He had come here to rest and spend the holidays. * * * How many times I wanted him to drop it he would always tell me it might do us some good...