62 N.W. 807 (Iowa 1895), Follis v. The United States Mutual Acc. Ass'n

Citation:62 N.W. 807, 94 Iowa 435
Opinion Judge:Deemer, J.
Party Name:MARY A. FOLLIS v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION, Appellant
Attorney:Kennedy & Kennedy and Peet, Smith & Murray for appellant. T. F. Griffin and Lynn, Sullivan & Foley for appellee.
Case Date:April 06, 1895
Court:Supreme Court of Iowa
 
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Page 807

62 N.W. 807 (Iowa 1895)

94 Iowa 435

MARY A. FOLLIS

v.

THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION, Appellant

Supreme Court of Iowa, Des Moines

April 6, 1895

Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.

On the nineteenth day of November, 1892, the dead body of William Follis was found underneath a railway bridge in Sioux City, Iowa across Perry creek. The body was lying face down in the water, and had evidently fallen or was thrown from the bridge. Deceased held a policy of accident insurance in the defendant company; his wife, the appellee herein, being the beneficiary named therein. This action was brought to recover five thousand dollars,--the amount agreed to be paid in case of death. The defense was-- First, that no action would lie to recover a money judgment; second, that deceased was intoxicated when he met with the accident which caused his death; and, third, that death resulted because the deceased voluntarily exposed himself to unnecessary danger. The case was tried to a jury, and a verdict and judgment were rendered for plaintiff, and defendant appeals.-- Reversed.

Reversed.

Kennedy & Kennedy and Peet, Smith & Murray for appellant.

T. F. Griffin and Lynn, Sullivan & Foley for appellee.

OPINION

Page 808

[94 Iowa 436] Deemer, J.

The policy in suit provides that "if death shall result from such injuries [external, violent, and accidental] alone, and within ninety days, the association will pay five thousand dollars to Mary A. Follis [his wife]. * * *" Among other conditions appearing upon it is this: "The payment of the various sums of indemnity herein provided is conditioned, pursuant to chapter 175 of the Laws of 1883 of State of New York, upon the same being realized from assessments (premium calls) upon the members of the association. Payment in case of loss of one or both hands, feet, or eyes, or for permanent total disability, shall immediately terminate membership and this insurance." We are not advised as to what is contained in chapter 175 of the Laws of 1883 of the State of New York. The by-laws of the defendant company provide for an assessment to be made by [94 Iowa 437] the company to pay losses in the event of there being no funds at hand with which to meet them. It is insisted on behalf of appellant that the promise to pay in this case is conditional upon the same being realized from assessments upon the members of the association, and that as there is neither allegation nor proof of...

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