Glass v. Masons' Fraternal Acc. Ass'n, of America

• Decision Date: 24 December 1901
• Citation: 112 F. 495
• Parties: GLASS v. MASONS' FRATERNAL ACC. ASS'N OF AMERICA.
• Court: U.S. District Court — Northern District of Iowa

112 F. 495

GLASS v. MASONS' FRATERNAL ACC. ASS'N OF AMERICA.

United States Circuit Court, N.D. Iowa, Eastern Division.

December 24, 1901

H. T Reed and C. W. Reed, for plaintiff.

R. J Burglehaus and John McCook, for defendant.

The parties in this case having in writing waived a jury trial the court, from the evidence submitted, finds the facts of the case to be as follows:

(1) That the plaintiff herein was, when this action was begun and continues to be, a citizen of the state of Iowa, residing in the Eastern division of the Northern district of Iowa, and that he is the duly appointed and qualified administrator of the estate of M. L. McNally, deceased, so appointed by the district court of Howard county, Iowa.

(2) That the defendant company was, when this suit was begun, and continues to be, a corporation created under the laws of the state of Massachusetts, and is engaged in the business of accident life insurance.

(3) That in April, 1891, one M. L. McNally resided at Lime Springs, Howard county, Iowa, being engaged in the business of buying and selling grain, and on the 13th day of April, 1891, the said McNally signed an application for membership in the defendant association, which was in the form following:

'Fill in This Blank Plainly with Ink.

'Application for Membership.

'Class 1.

No. 20,566.

'The Masons' Fraternal Accident Association of America, Westfield, Mass.

'Incorporated Under Massachusetts Laws.

'$5,000 insurance.

'2,500 for loss of hand or foot.

'$5,000 for loss of both hands or feet. $5,00 for loss of both eyes.

'Applications for membership are not binding until accepted by the secretary. No other person is authorized to bind the association.

'No. 1. Name in full: M. L. McNally.

'No. 2. Age: 36.

'No. 3. Residence: Street & No. -- . Town: Lime Springs. State: Iowa.

'No. 4. Place of business: Town; Lime Springs, Iowa.

'No. 5. P.O. address were notices are to be mailed: Lime Springs, Iowa.

'No. 6. Occupation: Merchant grain dealer.

'(Name them all.)

'No. 7. What are the duties required of you in above occupation? Office duty.

'No. 8. I agree to have my occupation classed as -- .

'No. 9. I agree to carry this insurance one year, and pay assessments quarterly.

'No. 10. The weekly indemnity herein named does not exceed my salary.

'No. 11. In case of accidental death, the benefits of my certificate shall be payable to

'A. Given name in full: Anna G. Nally.

'B. Residence: Lime Springs.

'C. Relations, if any: Wife.

'No. 12. Insurance in case of accidental death to be $ -- .

'No. 13. Weekly indemnity for disabling injuries to be $ -- .

'No. 14. I have never had, nor am I subject to, fits, disorders of the brain, or any bodily or mental infirmity, except as herein stated.

'No. 15. I am not contemplating any special journey, or any hazardous undertaking, except as herein stated.

'No. 16. My habits are correct and temperate, and I agree that this certificate shall not cover any injury happening through or while under the influence of intoxicating drinks or narcotics.

'No. 17. I understand the classifications of risks, and agree that for any injury received in any occupation or exposure classed by this association as more hazardous than those above stated I shall be entitled to recover only such amount as the premium paid by me would purchase at the rates fixed for such increased hazard.

'No. 18. I hereby agree that Bro. L. G. Basford, into whose hands this application is given for transmission to the Masons' Fraternal Accident Association, is my agent in the perfecting of the insurance under this application.

'No. 19. Name of Lodge: Howard, No. 224. Location: Lime Springs.

'Dated April 13, 1891.

'(Signed) M. L. McNally.

'Please fill out the above application, inclose membership fee, and forward to J. A. Lakin, Secretary and Gen. Manager, Masons' Fraternal Accident Association of America, Westfield, Mass.

'Membership fee, five dollars, payable but once.

'Sent to the home office by L. G. Basford.

'Send certificate to -- .'

Stamped on the back of this application is the following:

'Approved and accepted Apr. 18, 1891.'

(4) This application was duly approved by the defendant company under date of April 18, 1891, and on that date the defendant company issued a certificate or policy of insurance, of which a correct copy is attached to the original petition filed in this case on the 9th day of May, 1900, in the district court of Howard county, Iowa, and which copy is made part of this finding.

(5) That at the date of the signing of the application named in the third finding and the issuance of the certificate or policy named in the fourth finding the defendant company had in force certain by-laws, a copy of which is attached to the answer to the amended petition filed in this case on the 15th day of June, 1901, which copy is made part of this finding, and also had issued for the guidance of parties interested a manual containing classifications of risks and other matters, of which manual a copy is attached to the said answer of the defendant filed in this court on June 15, 1901, and which copy is made a part of this finding.

(6) The certificate or policy of insurance issued by the defendant company under date of April 18, 1891, was delivered to the said M. L. McNally, who thereby, and the contract of insurance existing between the said McNally and the defendant company was in full force at the date of the death of the said McNally on the 27th day of October, 1899, so far as the same was dependent upon the payment of the assessments or premiums coming due under the contract of insurance.

(7) That in the year 1899 the said M. L. McNally entered into the employ of the Albert Dickinson Company, at Chicago, Ill., which company was engaged in the grain business, having their office on West Taylor street, some distance east of Beach street. Beach street is 60 feet in width, and between West Taylor street on the south and Forquer street on the north there was during the year 1899 four railroad tracks maintained and operated along Beach street, and within the limits thereof, there being on the east side thereof a wagon track or road some 20 feet in width, and also being within the boundary of the street. To the west of Beach street there were some 10 railroad tracks maintained and operated, and along these tracks, including those located within the limits of Beach street, trains and locomotives were frequently passing. On West Taylor street, beginning at a point near the office of the Albert Dickinson Company, there was during the year 1899 a viaduct extending across the railroad tracks in Beach street and those west thereof, thus affording a passageway proper for the use of persons and vehicles, above the railway tracks. The location of the streets, railway tracks, viaduct, and the office of the Albert Dickinson Company, as the same existed in 1899, are shoun upon a blueprint map of the locality, which is made a part of this finding.

(8) As the situation actually existed in the year 1899, there was nothing to indicate to the eye that Beach street did not in fact extend westerly far beyond its actual boundary. There were no buildings or sidewalks upon or near the western line of the street between West Taylor and Forquer street, and nothing in the situation or surroundings, so far as observable by sight, which would cause a person to know when he had passed the western boundary of the street.

(9) The railway track immediately west of the line of Beach street was in the year 1899 used by the Chicago, Burlington & Quincy Railroad Company. It was the custom of that company and the other railway companies using the tracks in and adjacent to Beach street in the year 1899 to place on some of the tracks passenger cars, where they remained until they were taken down to the Union Station to form the trains running to the suburban towns in the neighborhood of Chicago.

(10) As a matter of convenience, and to save the time needed to reach the Union Depot, many of the persons employed in the warehouses and offices, including the office of the Albert Dickinson Company, which were located east of Beach street were in the habit, during...