plaintiff has no cause of action against the defendant.

The demurrer was sustained by the court below, and, plaintiff not desiring to plead further, judgment was rendered against her, and error proceedings prosecuted to this court, seeking a reversal of the judgment.

The real question in this case is of very narrow limit. It is admitted that no notice of the accident was sent to the company by William H. Gibbs, but that, on the other hand, within the time required by the policy, notice was given to the company of his death by the beneficiary. The question presented involves a construction of that part of the policy which reads as follows:

"If death shall result under the conditions covered by this Article, notice of said death must be given in writing to the Supreme Secretary within ten (10) days after said death, which death notice shall be in addition to the notice of the accident and shall state the cause of the death."

It is the claim of the plaintiff that according to the terms and conditions of the policy, and in order that she might recover from the defendant as a beneficiary, it was not imperative that notice of the accident be given to the defendant, but that if notice of the death of the decedent be given within ten (10) days the defendant is liable.

It is further contended on the part of the plaintiff that the language of this policy in so far as the giving of the notice is concerned is divisible into two parts, one of which relates to the insured and the other to the beneficiary, and that even should the failure of the insured to give notice to the com

pany within ten (10) days after the happening of the accident result in a loss of the benefits thereunder to him, yet in case of his death as a result of such injury such action does not bind the beneficiary; that the beneficiary can not possibly have any interest in the policy until after the death of the holder, and that it is not incumbent upon the beneficiary as a condition precedent to give both of these notices, one within ten (10) days after the happening of the accident and the other within ten (10) days after the death, for the reason that she would not be a beneficiary under the policy under any circumstances or conditions prior to the death of the policy holder; and that having complied with all that is required of her, namely, to give notice of death within ten (10) days, the company is liable to her as such beneficiary for the full amount of the policy.

And it is further contended that should the decedent have waived all his claim to any benefits, this waiver would not estop the beneficiary from claiming under the policy.

Very exhaustive and voluminous briefs have been filed in this case, and we will not attempt to review or distinguish the authorities cited therein. Our attention has been called to the case of Hammill v. United Commercial Travelers, 164 N. Y. Supp., 815. The facts in that case show that on April 6, 1914, Hammill sustained an injury and died as a result thereof on April 22, 1914; that no notice of the accident was given within ten days, and the only notice given to the company was the notice of the death within ten (10) days thereafter.

At page

Gibbs v. U. C. T.

816 the court says:

[14 Ohio

"The appellant argues that the words, 'which death notice shall be in addition to the notice of the accident,' implies that there must be two notices in all cases where death results from an accident more than ten days thereafter. We think it means rather that when notice of the accident is given by the insured member and he thereafter dies as a result of such accident, a notice of death must again be given notwithstanding the first notice. An injured member might consider his injuries trifling, and might have no intention of making a claim therefor against the Order. But death unexpectedly overtakes him as a result of the accident. The beneficiary under the certificate is not in such a case precluded from making a claim because of want of previous notice. But if on the other hand the injured member had given notice of his injury and made claim for compensation under his certificate and subsequently dies, the notice thus given is not sufficient, but a notice of death must also be given, which death notice shall be in addition to the notice of the accident.'

It is contended on the part of the defendant in error that the Hammill case has been overruled by the supreme court of New York in the case of Sasse v. United Commercial Travelers, 226 N. Y., 669; but we are unable to find that it is a similar case or that the holding of the New York court in the Hammill case has been overruled or modified.

In this Hammill case the language of the policy was identical with the language of the policy in this case, the defendant being the same as in the instant

case.

Other cases cited and relied upon by counsel for plaintiff in error are Western Commercial Travelers' Ass'n. v. Smith, 85 Fed. Rep., 401; United Commercial Travelers v. Sain, 186 Fed. Rep., 271; Nax v. Travelers' Ins. Co., 130 Fed. Rep., 985; Maloney v. Maryland Casualty Co., 113 Ark., 174; Moore v. General Accident, Fire & Life Assurance Co., 173 N. C., 532; Barnes v. General Accident, Fire & Life Assurance Corporation, Ltd., 96 Kans., 679, and Hoffman v. Mfgs.' Accident Indemnity Co., 56 Mo. App., 301.

In Crotty v. Continental Casualty Co., 163 Mo. App., 628, the syllabus is as follows:

"1. The beneficiary in an accident insurance policy is not required to give any notice to the company of an injury to the insured until a claim matures by the death of the latter.

"2. It would be unreasonable and absurd to require the wife of the insured, who is the beneficiary of the death indemnity in an accident insurance policy, to notify the company of a possible future death claim every time her husband receives an injury."

In Continental Casualty Co. v. Colvin, 77 Kans., 561, it is held:

"Where an accident-insurance policy provides for the payment of a weekly indemnity to the insured if disabled by an accidental injury to the extent described, and also provides for the payment to a beneficiary named in the policy of a stipulated indemnity in case of the insured's death from such an injury, and stipulates that 'written notice of claim must be given by the insured, or by the bene

the date of the accident causing the loss for which claim is made,' the time within which notice must be given by the beneficiary does not begin to run until the death of the insured."

The court in discussing the case, on page 569, uses this language:

"It is also contended that, if this right of action existed, it has been lost by failure to give notice as required by clause 4, above set out. No notice was given to the company until more than fifteen days after the insured was injured. If such notice was necessary, the failure to give it worked a forfeiture of all rights under the policy. It will be seen from clause 4 that notice of the claim must be given by the insured or by the beneficiary. These parties cannot both have a claim at the same time. It would be a useless thing for the beneficiary to give notice of a claim which is not in existence and which may never arise. Such a proceeding cannot be fairly assumed to have been contemplated by the parties, and it does not seem to be clearly expressed by the language of the policy. Until the death of the insured the beneficiary had no interest in, or claim to, the policy, and no rights under its provisions. A claim in favor of the insured arose after he received the injury, and to preserve that claim it was incumbent upon him to give the required notice. But the beneficiary, during the life of the insured, had no claim against the company nor any right under the policy to be protected. The language of the clause evidently contemplates that this duty will in some cases rest upon the insured