Fellers v. Modern Woodmen of America
| Decision Date | 18 December 1917 |
| Docket Number | 31567 |
| Parties | LYDIA FELLERS, Appellant, v. MODERN WOODMEN OF AMERICA, Appellees |
| Court | Iowa Supreme Court |
Appeal from Black Hawk District Court.--GEORGE W. DUNHAM, Judge.
SUIT upon a certificate of insurance. Defense that decedent engaged in a prohibited occupation, and that, though this did not cancel the certificate, it relieved defendant from liability for injuries directly traceable to being engaged in the prohibited occupation. Reply that defendant has waived and is estopped to urge said defense, and that the injury was not directly traceable to said occupation. Verdict directed for defendant. Plaintiff appeals.--Reversed and remanded.
Reversed and remanded.
Hughes Sutherland & Taylor, for appellant.
Pike & Sias and George G. Perrin, for appellees.
I.
Decedent changed his occupation from that of a common laborer to that of an electric lineman for an electric railroad. This worked that, unless certain prescribed steps were taken, defendant was under no liability on account of the death of the insured "directly traceable" to this new employment. None of the steps aforesaid were taken, but the plaintiff claims that failure to do this has been waived, and that the defendant is estopped to urge this change of occupation. The trial court held that, as matter of law, neither waiver nor estoppel has been shown.
II. The defendant may be liable for the death of assured though he did change to a prohibited occupation, did not take the steps necessary to cover death from the hazards of that occupation, and though there be no estoppel to urge the change in occupation. The defendant concedes this much, because it urges as one reason why there is neither waiver nor estoppel that the certificate so remained in force as that receiving and retaining of dues and assessments worked no waiver. If, then, the decedent came to his death in such manner as that the defendant is liable upon that part of the certificate which remained alive despite the change of occupation, the court erred in holding that plaintiff might not recover. The only effect of the change in occupation was to relieve the insurer from liability for injuries "directly traceable to employment in * * * such occupation." For the purposes of this case, the defendant is responsible unless the injuries were thus traceable. The burden of establishing that death is due to causes excepted by the contract is upon the insurer. Vernon v. Iowa St. Trav. Men's Assn., 158 Iowa 597, 138 N.W. 696; McClure v. Great Western Acc. Assn., 141 Iowa 350, 118 N.W. 269; Barnabus v. Bersham Colliery Co., 103 L.T.R. 513. This burden is not discharged by merely showing a state of facts which is equally consistent with the claim that the injury is proximately due to the hazardous employment or with its not being due thereto. Eisentrager v. Great Northern R. Co., 178 Iowa 713, 160 N.W. 311; In re Savage, (Mass.) 110 N.E. 283. The defender must make it appear by a preponderance that the injury had some causative connection with the peculiar hazards of the prohibited employment; that it was peculiarly due to that employment; and that these peculiar hazards are the immediately proximate cause of the injury. Has the defendant discharged that burden? Has it been shown by a preponderance that what happened to the decedent was caused by his being a lineman; that he might not have been injured as he was if he had not engaged in that occupation, but had remained in one which the certificate of insurance did not except?
How the decedent came to his death is brought before us by stipulation. He, together with one Albert Waring, were working together on top of a platform, which platform was on top of a trolley car. The two were in the act of placing in position a steel trolley wire for the common employer. In order to place said wire in proper position, it was necessary to pry it into that position. To do this Waring used a wooden pry, and was in the act of forcing the wire into position. Decedent was in the act of fastening the gripping to said wire to hold it in position after it had been pried into same by Waring. While the two were so acting, the trolley pole of the car flew off from the trolley wire with which it had been connected; as it flew off, it struck Waring and caused him to let go of the pryer; this released the trolley wire, which flew back, struck decedent, caused him to lose his balance and be hurled to the ground. Falling to the ground, decedent struck his head on a rail of an adjoining track, crushing his skull and thereby causing his death.
Was the court justified in holding, as matter of law, that this death was "directly traceable to employment" as such lineman? The exception in this contract is, for the purposes of construction, a species of forfeiture,--not in the strict sense that engaging in a prohibited occupation cancels the certificate, but in the sense that being so engaged denies a right to recover which would otherwise exist. Construing the exception in that view, its reasonable meaning is that there shall be no liability if death results, not while at work as a lineman, but because doing the proper work of a lineman caused the injury. Though decedent was at work as a lineman defendant would not be released had he been killed by a stray bullet from one who was hunting in the neighborhood. That a drunken man falls from a scaffold while working as a lineman would not suffice. The same injury might occur if a common laborer, working as such upon a scaffold, fell from the same because he was drunk. The injuries within the reasonable contemplation of the exception here are such as would arise from touching a live wire, from being tripped by a wire that is being handled either in erection, repair, taking down, and the like. The injury in this case seems to us to be in no way directly traceable to the occupation of the decedent, and we think the only relation the injury had to the employment is that it occurred while such employment was being pursued. The injury did not arise because of some attribute of the trolley wire as such, but because a colaborer, being struck by such wire, fell, in falling struck decedent, and caused him to be hurled to the ground and hurt by the impact. Eliminate the fact that this occurred while both were working as linemen, and you have no injury directly traceable to the occupation; because handling any wire in any occupation, and having such wire strike one of the handlers...
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