Vernon v. Iowa State Traveling Men's Ass'n

• Citation: 138 N.W. 696,158 Iowa 597
• Parties: VERNON v. IOWA STATE TRAVELING MEN'S ASS'N.
• Decision Date: 20 November 1912
• Court: United States State Supreme Court of Iowa

158 Iowa 597

138 N.W. 696

VERNON

v.IOWA STATE TRAVELING MEN'S ASS'N.

Supreme Court of Iowa.

Nov. 20, 1912.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action at law upon a certificate of membership in the defendant association issued to Leo O. Vernon; plaintiff being the beneficiary named in said certificate. Upon issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Affirmed.Sullivan & Sullivan, of Des Moines, for appellant.

Dunshee & Haines, of Des Moines, for appellee.

DEEMER, J.

The defendant, a mutual benefit accident association, on the 21st day of February, 1905, issued to Leo O. Vernon a certificate of membership, naming plaintiff (his wife) as beneficiary. The certificate was issued pursuant to an application of the assured in which he stated in answer to an interrogatory that he had some kidney trouble. He left unanswered a question as to whether or not he had ever had Bright's disease. Assured died on the 30th day of July, 1909, and plaintiff claims that his death was the result of blood poison due to an abrasion of the skin on one of his limbs, caused by the use of a brush or other implement in the hands of a bath attendant while giving him a bath at a sanitarium in the town of Colfax. Defendant denies that he died of blood poisoning, and claims that his death was caused or contributed to by a diseased condition of the kidneys. On these issues the case tried to a jury with the result hitherto stated. Numerous assignments of error are made in the brief, and to such as are regarded as material we shall now devote our attention.

[1] 1. In making her case, plaintiff was permitted to prove over defendant's objections that early in the month of July of the year 1909, while she and her husband were at the sanitarium in Colfax, the husband went to the bathroom for a bath, and that upon his return he exhibited to her one of his limbs, disclosing an abrasion of the skin, with the remark, “I want to show you how rough that damn fool was with me in the bathroom.” This testimony was properly res gestæ of the transaction, and there was no error in overruling defendant's objection. N. A. Ass'n v. Woodson, 64 Fed. 689, 12 C. C. A. 392;Keyes v. Cedar Falls, 107 Iowa, 509, 78 N. W. 227;Insurance Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437.

[2] During the illness which followed and finally resulted in death, it seems that deceased was in pain from the wound, and witnesses were permitted to testify to his declarations of present pain in the limb. In this there was no error. These declarations were also part of the res gestæ and were material as indicating a probable cause of death.

[3] Defendant sought to show the assured's condition of health, both prior to and after he became a member of the association, and before it is claimed he received his injuries by declarations or admissions made by him to his father and mother, and also to his wife, the plaintiff. The declarations said to have been made to his wife were absolutely privileged, and therefore inadmissible.

[4] Our attention has not been called to any other declaration sought to be introduced; but, if such were offered, they were inadmissible as against the plaintiff, unless shown to have been part of the res gestæ. These propositions are ruled by Sutcliffe v. Association, 119 Iowa, 220, 93 N. W. 90, 97 Am. St. Rep. 298, and need not be further elaborated.

[5] Complaint is made of the striking out of some of plaintiff's testimony, and particularly of a statement made by her that her husband “was troubled with a slight kidney trouble ever since the Cedar Rapids fire.” There is some doubt about whether the ruling went this far, but, if it did, there was no prejudice, for this fact was virtually conceded upon the trial. Again the witness said that her only means of knowledge was from statements made to her by her husband. Assuming that to be true, the ruling seems to be sustained in Sutcliffe Case, supra.

[6] Some rulings on the rejection of testimony were erroneous, but they were either fully covered by subsequent admission or were without prejudice.

[7] 2. The certificate of membership, or the articles of incorporation and by-laws which by reference were made a part of the certificate, contained the following, among other, provisions:

“Art. 6, § 2. Benefits: Whenever a member in good standing shall, through external, violent and accidental means, receive bodily injuries, which shall, independently of all other causes result in death within twenty-six (26) weeks from said accident, the beneficiary named in his application for membership or his heirs, if no beneficiary is named therein, shall be paid the proceeds of one assessment of two ($2.00) dollars upon each member in good standing, but in no case shall said sum exceed the sum of five thousand ($5,000) dollars, and shall be in full satisfaction of all liability to the said deceased member, his beneficiary, heirs or legal representatives.”

“Art. 6, § 6. Benefits: Nor shall this association be liable in any manner to any member or beneficiary for any indemnity or benefit for accidental death, loss of limb, sight, disability resulting wholly or partially, directly or indirectly, from any of the following causes, conditions or acts, or when the member is under the influence or affected by any of the conditions or acts to wit: disease, bodily or mental infirmity, medical or surgical treatment. * * * Each of the foregoing causes, conditions or acts are expressly exempted from all the provisions of these by-laws granting to members or beneficiaries thereof benefits or indemnities.”

In view of these provisions, and in the light of the testimony, it is contended for appellant that the plaintiff did not make out a case, and that the court erred in some of its instructions; and also erred in denying certain requests made by the defendant. That all these provisions became a part of the contract, and that the burden was upon plaintiff of showing that the deceased came to his death by external, violent, and accidental means, is well established by authority. Binder v. Association, 127 Iowa, 25, 102 N. W. 190;Carnes v. Association, 106 Iowa, 281, 76 N. W. 683, 68 Am. St. Rep. 306;Taylor v. Insurance Co., 110 Iowa, 621, 82 N. W. 326.

[8] But it is also true that the burden is upon the defendant of showing that death resulted from one of the causes excepted by the contract of membership. Jones v. Association, 92 Iowa, 652, 61 N. W. 485;Carnes v. Association, 106 Iowa, 281, 76 N. W. 683, 68 Am. St. Rep. 306.

The trial court did not err to defendant's prejudice in instructing upon these propositions, but it is contended that it erred in giving the following: “(4) It is provided in the by-laws of the defendant association, which is a part of the contract sued on, that no benefits shall be paid for death caused wholly by disease, nor in any case except when the accidental injury was the proximate and sole cause of the death. Under the terms of this contract, the defendant is only liable in the event that death resulted solely, and independently of all other causes, from the alleged accident, and this the plaintiff must prove by a preponderance of the evidence. This provision of the by-laws of the defendant association entered into became and was at the time of the death of the said Leo O. Vernon, a part of the contract between him and the defendant association, and is binding upon the plaintiff and the defendant association in this case. (5) If you find by a preponderance of the evidence that an accident happened to the deceased, Leo O. Vernon, by an abrasion of the skin of his left leg by the use of a brush by an attendant administering said bath, and that from such abrasion blood poison or septicæmia set in, and you further find that by virtue of this injury and the resulting blood poison, if you find there was such injury and blood poison, death resulted as the sole result thereof, then and in that event the plaintiff will be entitled to recover in this case, and you should so find by your verdict. If, however, you find that the death of the said Leo O. Vernon resulted directly or indirectly from or in consequence of disease, then there can be no recovery in this case, and your verdict in that case should be for the defendant.”

Error is also predicated upon the court's failure to give the following bearing upon the same proposition: “(3) You are instructed that it is provided in the contract sued on: ‘Nor shall this association be liable in any manner to any member or beneficiary for any indemnity or benefit for accidental death, loss of limb, of sight, disability resulting wholly or partially, directly or indirectly, from any of the following causes, conditions or acts, or when the member is under the influence or affected by any such cause, condition or act, to wit: disease, bodily or mental infirmity. * * * Each of the foregoing causes, conditions or acts are expressly exempted from all the provisions of this by-law granting to members or beneficiaries thereof benefits or indemnities.’ You are instructed that, if at the time of the alleged injury, if you find an injury was received, the said Leo O. Vernon was in any manner affected by disease or bodily infirmity, then the plaintiff cannot recover and you should...