Hill v. Mutual Benefit Health & Accident Ass'n

KNIGHT, J.

This is an action to recover on a policy of accident insurance. The demurrer interposed by the defendant insurance company to the second amended complaint was overruled and said company declined to answer; whereupon a default judgment was entered, from which the company appeals.

The points urged in support of the appeal are that it affirmatively appears from said complaint, to which a copy of the policy is attached, that notice of the accidental death of the insured was not given within the time specified in the policy; that no proof of loss was furnished as required by its terms; and that the action was not commenced within the period of time fixed by the policy.

The following are the provisions of the policy involved:

“4. Written notice. ... In the event of accidental death immediate notice thereof must be given to the Association. 5. . . . Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as reasonably possible. 6. The Association upon receipt of such notice, will furnish to the claimant such forms as are usually furnished

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by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made. 7. Affirmative proof of loss must be furnished to the Association at its said office . . . and in case of claim for any other loss [death] within ninety days after the date of such loss. ... 14. No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed "in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy.”

The facts as they appear from said complaint are as follows: The policy was issued January 4, 1923, to Martino Perata, whereby, among other things, he was insured for $2,000 against loss of life by accident, the amount of the insurance, in ease of accidental death, being made payable to his estate. On March 17, 1927, while walking along the railroad tracks in the vicinity of Fruitvale station, Alameda County, he was struck by a “stay-chain” sprung out from one of the cars of a moving train, and thrown under the wheels. As a result of the injuries inflicted he died the following day, leaving no heirs in this state. Plaintiff is the public administrator of Alameda County and did not learn of the case until about the middle of October, 1928, whereupon he immediately applied for and on October 18, 1928, there were issued to him letters of administration in the matter of the estate of said deceased. On or about November 14, 1928, he gave to said company the requisite notice of the accidental death of Perata, and approximately two weeks later demanded from the company the forms upon which to prepare proof of loss. The company denied all liability for the loss and upon that ground refused to furnish said forms; consequently no proof of loss was made, and on March 1, 1930, well within the two-year period from that time, plaintiff commenced this action. The specific allegations of said complaint from which appear the essen