Dinnie v. United Commercial Travelers

Robinson, J.

(concurring specially). This is an appeal from an order overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action on the ground that the action is barred by a contractual limitation of six months. The complaint avers that the defendant is a fraternal benefit association of Ohio; that on December 8, 1915, John Dinnie became a member of the association, and at the time of his death, he was a member in good standing; that he died in November, 1916, but not from any cause excepted in the certificate of membership or the constitution or by-laws of the defendant, which certificate is made a part of the complaint. It is further averred that proof of death was duly made and on December 30, 1916, defendant refused to pay the death loss.•

The plaintiff is the mother of the deceased and the beneficiary named in the certificate. By its terms the insurance company contract provides for an indemnity only against bodily injury or death “effected through external, violent, or accidental means” occasioned by accident alone and independent of all other causes, and that no *55benefit shall be payable unless there is some external and visible marks of the accident upon the body, nor unless the external and violent accident is the proximate and sole cause of death or disability. Then it is provided that no suit to recover loss shall be commenced after the lapse of six months from the time the claim is disallowed.

It is obvious the complaint fails to state facts showing that the death was caused by violent and accidental means. For aught that appeal’s from the complaint, death may have been the result of ordinary and natural causes. In regard to the six months’ limitation, it is clearly no part of the insurance contract. It is in no way contemplated by the insurance application. It is merely a one-sided, unilateral declaration which the company chooses to insert in its policy. It is in direct conflict with the policy of the law and the statute forbidding a contract limiting the time within which a party may enforce a legal right. Comp. Laws, § 5927.

It is true that by § 4978 a limitation of one year may be imposed by certain mutual benefit societies organized and doing business in this state, but the defendant is not such a society, and one year does not mean six months. The case is entirely clear and it presents no question for any discussion.

Reversed.