United States Mut Acc Ass v. Barry

Citation131 U.S. 100,9 S.Ct. 755,33 L.Ed. 60
PartiesUNITED STATES MUT. ACC. ASS'N v. BARRY. 1
Decision Date13 May 1889
CourtUnited States Supreme Court

This is an action at law, brought in the county court of Milwaukee county, in the state of Wisconsin, by Theresa A. Barry, a citizen of Wisconsin, against the United States Mutual Accident Association, a New York corporation, to recover $5,000, with interest thereon at 7 per cent. per annum from July 15, 1883, on a policy of insurance issued by the defendant on June 23, 1882. The case, after answer, was removed by the defendant into the circuit court of the United States for the Eastern district of Wisconsin. The material parts of the policy are set forth in the margin.2

The complaint, after setting forth the terms of the policy, and averring that it was delivered by the defendant to John S. Barry, alleged 'that on or about the 20th day of June, 1883, and while said policy was in full force and effect, at the town or village of Iron Mountain, in the state of Michigan, and while the said John S. Barry was attending to the duties of his profession, to-wit, that of a physician, and wholly without his fault, it became necessary for him to step or jump from a platform, or walk, to the ground beneath, about four feet downwards, and, in doing so, and in alighting upon said ground, he unexpectedly received an accidental jar and sudden wrenching of his body, caused by said jump or step downward, and by coming in contact with the said ground beneath, as aforesaid, all of which was unexpected on his part, and wholly without his fault or negligence; that the said jarring of his person and wrenching of his body, caused as aforesaid, was the immediate cause of, and directly produced, a stricture of the duodenum, from the effects of which the said John S. Barry continued to grow worse until, on the 29th day of June, 1883, he, on account of the same, died.' Issue was joined, and the case was tried by a jury, whose verdict was that they found the issue in favor of the plaintiff, and assessed the damages to her at the sum of $5,779.70; and a judgment was entered for her for that amount, and $189.35 costs, being a total of $5,969.05. To review this judgment the defendant has brought a writ of error.

At the trial the plaintiff offered in evidence the policy or certificate, to which offer the defendant objected, for the reason that the complaint did not state facts sufficient to constitute a cause of action. The objection was overruled, and the defendant excepted. The defendant objected alsot hat the complaint alleged no assessment, and the court received the evidence subject to the objection. The plaintiff then proved, without objection, by the secretary of the defendant, that on the 23d of June, 1882, there were 804 members in division AA in the association, and on the same day in 1883, 4,803 members, and on the same day in 1884, 5,626; that during June and July, 1883, the defendant, in case of a death in division AA, could have levied a two-dollar assessment on at least 4,803 members, that number being then insured in that division; that the only members who were exempt from the two-dollar death assessment were those who became members subsequent to the death for which the assessment was made; that, if the defendant had desired to pay the loss occasioned by the death of Barry, the amount to be paid would have been $5,000; that the assessment levied next prior to June 29 1883, was levied June 1, 1883; that if, at the time a death was reported, and a claim was proved, there were sufficient funds to the credit of division AA, the loss was paid from those funds without making a specific assessment; that, if there were not sufficient funds at that time, an assessment was made; and that, on June 29, 1883, the defendant had on hand, belonging to class AA, $2,060.15. The witness then produced the by-laws of the defendant for 1882-83, the material parts of which are set forth in the margin.3

In the proofs of death furnished to the defendant was the following, in the evidence of the attending physician: '(12) What was the precise nature of the injury, and its extent? Inflammation of the duodenum, from jarring, (jump.)'

The plaintiff's husband was a physician, 30 years of age, at the time of his death. He was at the time of the injury strong and robust, weighing from 160 to 175 pounds, about 6 feet high, and in good health. With two other physicians, Dr. Crowell and Dr. Hirschmann, he visited a patient on June 20, 1883, who lived in a house behind a drugstore. On coming out of the house they were on a platform which was between 4 and 5 feet from the ground, and if they got off from the platform it was but a short distance to the back part of the drug-store, where they desired to go. The other two jumped from the platform first, and alighted all right. Dr. Hirschmann testifies: 'Just after we had jumped, Dr. Barry jumped, and he came down so heavy that it attracted our attention, and we both turned around, and we both remarked that it was a heavy jump; and I asked him, 'Doctor, are you hurt?' and he said, 'No; not much.' I have an indistinct recollection of his leaning against the platform when he jumped, but not sufficiently to state positively. If I were to jump, I would jump and strike on my toes, and, if I had any distance to jump, would allow my knees to give. The way Dr. Barry came down, it sounded to us as if he came down solid, on his heels, so much so that we both turned around and remarked, 'Doctor, you came down heavily.' And I asked him, 'Are you hurt?' and he said, 'No; not much.' I heard the noise. It was a singular jump, and sounded like an inert body. We then went with him to the drugstore.' Hirschmann drove home with him. He appeared ill on the way, and when he arrived home was distressed in his stomach, and vomited, and from that time on retained nothing on his stomach, and passed nothing but decomposed blood and mucus, and died nine days afterwards. There was much conflicting testimony as to the cause of death, and as to whether it resulted from duodenitis, or a stricture of the duodenum, as alleged in the complaint, and from an injury caused by the jump. The issues presented to the jury sufficiently appear from the charge of the court.

At the close of the evidence on both sides, all of which is set forth in the bill of exceptions, the defendant moved the court to direct a verdict for it on the ground that there was no evidence to sustain a cause of action. The motion was denied, and the defendant exceptd . The plaintiff then, by leave of the court, amended her complaint by alleging that at the time of Dr. Barry's death, and from that time, and for the balance of the year 1883, and including the time, as provided for in the policy, in which the said insurance was to be paid to the plaintiff herein, there were insured by it in class AA, the same class in which said Dr. Barry was at the time insured, 4,803 members or persons upon whom the defendant could have levied an assessment, under its by-laws and rules, of the two dollars per head, making an amount exceeding the plaintiff's claim of $5,000. This amendment was objected to, but the defendant took no exception. The defendant then demanded that the court submit a special verdict in the case, as provided by the rules of practice in the state of Wisconsin, and, as a question upon such special verdict, requested the court to submit the following question: 'Whether the death of Dr. Barry was caused by duodenitis?' The demand was refused, and the defendant excepted. The defendant then asked the court to submit, in connection with the general verdict, the special question as to whether the assured died of duodenitis. The request was refused, and the defendant excepted. The defendant then requested the court to charge the jury as follows: 'It appears from the evidence in this case that by the policy in suit the defendant company accepted John S. Barry as a member of class AA, and in effect agreed to levy an assessment of two dollars upon each member of said class, and to pay the same to the plaintiff, if said John S. Barry should die of bodily injuries effected through external, violent, and accidental means, but in no event to pay more than $5,000. Before the plaintiff can recover in this case she must show that the defendant, when it received the proof of death, on or about July 15, 1883, either had cash on hand belonging to class AA, or levied an assessment upon the members, and by that means the defendant received money which belonged to class AA. By the evidence in suit it appears that there were over 4,000 members belonging to class AA during the months of June and July, 1883, who were subject to assessment of two dollars per man, and that, on June 1, 1883, an assessment was made upon members belonging to class AA, and that on June 29, 1883, the defendant had on hand $2,060.15 belonging to class AA, and that an assessment was then pending and in process of collection. This evidence does not show any cash on hand belonging to class AA on July 15th, or at any later date, nor is there any other evidence in the case which would show that fact, or that any assessment was levied. Therefore the plaintiff cannot recover in this action, and you are instructed to return a verdict for the defendant.' The court refused to give this instruction, and the defendant excepted. The defendant then separately requested the court to charge the jury to find for the defendant because no accident within the true intent and meaning of the policy occurred to Dr. Barry, and that he did not die from duodenitis; and that they must find for the defendant if he, in jumping, alighted squarely on his feet, or if they found that the jump did not result in the obstruction or occlusion of the duodenum; and that there was no evidence of any wrenching, twisting, or straining of the body in the jumping; and that, considering the character of the injury alleged in the case, and the difficulty attending its...

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