United States Mut Acc Ass v. Barry
Citation | 131 U.S. 100,9 S.Ct. 755,33 L.Ed. 60 |
Parties | UNITED STATES MUT. ACC. ASS'N v. BARRY. 1 |
Decision Date | 13 May 1889 |
Court | United 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:
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: 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: 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...
To continue reading
Request your trial-
Metropolitan Life Ins. Co. v. Williams
...... National Masonic Acc. Assn. of Des Moines v. Shyrock, 73 F. 774; Order of the United Commercial. Travelers of America v. Nicholson, 9 F.2d 7; Isoard. v. National Life Ins. Co. of ... Svenson v. Mutual Life Ins. Co. of New York, 84 F.2d 441. . . Other. states have placed the burden of proof on the plaintiff to. prove that the insured died as a result of ...Civ. App., . 260 S.W. 938, 939; United States Mutual Acc. Ass'n. v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60. . . In the. Bryant Case, supra, which is ......
-
Lavender v. Volunteer State Life, Ins. Co
......104, 30 L. R. A. 209, 47 A. S. R. 638, 28 S.W. 877; U. S. Mutual. Accident Association v. Barry, 131 U.S. 100; Dent v. Ry. Mail Association, 183 F. 840; Western Commercial. Travelers ...Co., 42 L. R. A. 253; Fore v. New York Life Ins. Co., [171 Miss. 172] 67 A. L. R. 1358; United Order v. Overton, 83 So. 59; Mutual. Life Ins. Co. v. Lovejoy, 78 So. 299; L. R. A. 1918D,. 865; ...Stacey's Executors,. 143 F. 271, 5 L. R. A. (N. S.) 657, 6 Ann. Cas. 955;. Hutton v. States Acc. Ins. Co., 267 Ill. 267, 108. N.E. 296, L. R. A. 1915E 127, Ann. Cas. 1916C 577; United. ......
-
Browning v. Equitable Life Assur. Soc. of the United States
...... directly and independently of all other causes, through. accidental means . "Accidental means" is used. in the policy of insurance in its common significance, that. of happening unexpectedly, without intention or design. United States Mut. Acc. Ass'n v. Barry ,. 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60. Accident is a. comprehensive term, much broader than negligence. It would be. error to rule as a matter of law that the disability was not. effected "directly and independently of all other. causes" through the injury received in the fall. The. point ......
-
United States Fidelity & Guaranty Co. v. Hood.
...... independent of all other causes, disable the assured.'. . . "That. a strain received in the ordinary course of the assured's. business, if received at all, is an accident within the. contemplation of the policy, we can have no doubt. United. States Mut. Acc. Ass'n v. Barry, 131 U.S. 100, 121,. 33 L.Ed. 60, 67, 9 S.Ct. Rep. 755. . . "The. universal rule of interpretation of contracts of insurance of. all kinds is that, in cases of doubt, that interpretation. shall be given which favors the insured rather than the. insurer. The particular words ......