Dinnie v. United Commercial Travelers

Grace, J. Appeal from the district court of Grand Forks county from an order overruling a demurrer to the complaint, Honorable C. M. Cooley, Judge. The action is one to recover $6,300 with interest from the 9th day of November, 1916, alleged to be due upon a certain accident insurance policy issued by the defendant to plaintiff. The complaint, in substance, alleges the defendant is an Ohio corporation authorized to do business in the state of North Dakota; that it is a fraternal benefit association engaged in the business of insuring its members against injury and death, and has authority so to do. The complaint contains allegations as to the time when the plaintiff was received into the' association as a member through the Minot council No. 277 of Minot, North Dakota; the issuance to the plaintiff of the policy describing it; the compliance of the plaintiff, during his lifetime, with the. articles of association of the defendant and compliance with the -regulations and by-laws in force at the time of the issuance of the certificate, and those thereafter adopted, and that the plaintiff performed all the agreements and conditions of the certificate. The complaint further shows that the plaintiff died on or about the 9th day of November, 1916, but not from any other causes excepted in said certificate or the constitution or by-laws of said defendant, and further shows notice of death of the plaintiff was furnished to the defendant within a time described and also delivered to the defendant due proof of the death of the plaintiff. Complaint further shows the ■defendant has money in the treasury sufficient to pay the plaintiffs claim; It alleges the proper demand for the payment of the amount •of the policy and the refusal of the payment thereof by the executive committee of the defendant, and shows that the beneficiary named in the policy is the mother of the plaintiff. The defendant demurred to the complaint on the ground that the ■same does not state facts sufficient to constitute a cause of action. The [46] plaintiff came witbin wbat was denominated Class A by tbe provisions of tbe constitution of tbe defendant at the date of tbe certificate, part of which reads thus: “Class A insured members shall be indemnified in accordance with tbe terms hereinafter set out in this article against tbe result of bodily injury hereinafter mentioned, effected through external, violent, and accidental means, herein termed the accident which shall be occasioned by the said accident alone and independent of all other causes.” The complaint contains no allegations that the death of the insured was the result of an accident or that it was caused through external, violent, and accidental means. An allegation of this character and to this effect in the complaint is indispensable in order that the complaint may show the liability of the defendant under the terms of the policy and in accordance with the application, by-laws, and constitution which is a part of the contract. The plaintiff claims this point was up before the trial court or mentioned in his presence prior to the time of decision on the demurrer and should not be here on appeal. The complaint alleges “that said John Dinnie died on or about the 9th day of November, 1916, that not from any other causes excepted in said certificate or the constitution or by-laws of said defendant.” The plaintiff, in effect, admits that if the above allegation is not sufficient to meet the objection by the defendant that the complaint contains no allegation of death by external, violent, and accidental means, then it is clearly demurrable. It is clear to us the above allegation is not sufficient and it, in no manner, shows the death to have been the result of accident or through external, violent, and accidental means. In this respect, it is clear the demurrer should have been sustained. The only remaining question to be considered is that relating to the time of the bringing of the action. The defendant claims the plaintiff has no right to maintain the action, not having commenced the same before the Statute of Limitation had expired, as fixed by the contract of insurance, which was within six months from the time of the notice of the disallowance of the claim. As near as we are able to determine from the limited record before us and so far as insurance is concerned, the defendant is engaged only in furnishing that kind of insurance which is denominated accident insurance. The lodge sys47 tern under which the defendant operates is largely for the purpose of facilitating the carrying out of the main object of the institution, which is the effecting of accident insurance to the members of the United Commercial Travelers when they become members of the corporation in the manner provided by the constitution and by-laws. Section 4978, Compiled Laws 1913, provides that insurance corporations, associations, and societies engaged in the business of accident insurance, may limit the time within which suit may be brought on any claim based upon the policies or certificates of membership, and that after the expiration of the time limited they would not be liable thereon. It is further provided that such limitation shall not be less than one year from the time such right of action accrues. The general statute on the limitation of actions with reference to contracts provides that an action may be maintained thereon at any time within six years after the right of action accrues. Section 5927, Compiled Laws 1913, in effect, provides that every stipulation or condition in a contract restricting a party from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals or which limits the- time within which he may thus enforce his rights is void. It appears that the provision in the defendant’s contract limiting the time within which action may be brought to six months from the time of notice of rejection of a claim is invalid as being contrary to the provision of all the above sections with reference to the limitations "of action, and, in stating this, we are not passing upon the validity of § 4978, Compiled Laws 1913, nor do we hold it to be invalid because it is in conflict with subdivision 1 of § 7375, Compiled Laws 1913, which is to the effect that an action upon contract must be commenced within six years after the cause of action has accrued. As we view it, the question is not presented in this case. That being true, it would serve no useful purpose to determine the question until it is squarely presented. The plaintiff has brought the action in time under any of these statutes, and having brought the same within one year from the time the right of action, if any, accrued, he is within time. If the plaintiff had not brought the action until after the expiration of one year from the time the right of action accrued, the question would then be presented whether §§ 4978 or 7375 controlled. [48] The defendant also claims tbat it is a fraternal benefit society. Assuming this to be true and that the constitution and by-laws and the application become part of the contract, as is usually provided by such associations, and assuming that defendant claims the right to make the six months’ limitation of the time to bring an action against it by virtue of the law with reference to fraternal benefit societies and by reason of the provisions of its constitution and by-laws, it is clear to us there is no such right under chapter 191 of the Session Laws of 1913, which deals at length with fraternal benefit societies, or any other law of this state. The act of fixing the time in which actions must be brought is a legislative prerogative which requires a legislative act. The general law is, that an action may be brought upon contract, either express or implied, within six years from the time action accrues. If a fraternal benefit society provided by its by-laws or constitution that an action upon contract may be brought within three years, two years, one year, or thirty days, as the case may be, from the time the right of action has accrued, such society has, in effect, enacted a law relative to the limitations of actions as to its contracts. It is clear to us that such associations would have no such power or authority unless specifically granted to them by the legislature, and if such a grant were given, its validity would at least be very doubtful. While such associations, under the law, have the general power of managing their internal affairs and transacting their business, and, to do that, may adopt a constitution and enact by-laws providing for the manner in which the business of the association is to be done, and in general the nature, form, and extent of the- contract with its members, such constitution and by-laws cannot be in conflict with the laws of the state; nor is the power granted such associations to enact by-laws to vary the terms of the law relative to limitation of actions on contract, or, in effect, repeal it and enact substantially a different law upon the subject. The legislature has the power to fix the limit of time within which an action on contract may be commenced after the right of action has accrued, subject to the requirement only that the time must be reasonable. Under the general law with reference to the limitations of actions on contract where the action must be commenced within six years after the right of action has accrued, there can be no question but the time is reason [49] able. Tbe same may be said with, reference to the time specified in particular law referring to a particular contract where such time, though less than six years, is a substantial period of time such as is provided by the law of this state'for life insurance contracts. We need not say whether the one-year period specified in § 4978 with reference to the time of bringing an action against an accident insurance company after the right of action has accrued is reasonable or not. That question is not presented, the suit in question having been brought within the year. We are clear that the action of the plaintiff, if she have one, is not barred by -the Statute of Limitations. We are not fully convinced that it is necessary to allege and prove the occupation of the plaintiff at the time of his death. If the occupation at the time of death is different from that at the time of the issuance of the policy, or if it is claimed that such change avoids the insurance or that the occupation at the time of death is more hazardous than the original occupation, such matters may be in the nature of defensive matter. However this may be, we are «clear the plaintiff’s complaint would not be demurrable by failure to allege the occupation at the time of death. The order of the District Court is reversed and the case is remanded to it, and the plaintiff is allowed twenty days after the remittitur is returned to the District Court in which to serve and file an amended complaint. Appellant is allowed statutory costs on this appeal. Biedzell, J, I concur in the result.