Follis v. The United States Mutual Acc. Ass'n
| Citation | 62 N.W. 807,94 Iowa 435 |
| Parties | MARY A. FOLLIS v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION, Appellant |
| Decision Date | 06 April 1895 |
| Court | Iowa Supreme Court |
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.
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: 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 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 any funds in the treasury of the company, nor of any assessment having been levied or moneys realized to pay the claim, plaintiff cannot recover more than nominal damages; her remedy being in equity, to compel the levy of an assessment. Counsel cite, to sustain them, Bailey v. Association, 71 Iowa 689, 27 N.W. 770, and kindred cases. These cases are not applicable, for the reason that in each of them the obligation of the company was to pay the net proceeds of an assessment, not to exceed the amount called for by the certificate, to the beneficiary. Here the promise is to pay a definite amount, which is in no manner dependent upon or limited by the assessment. True, an assessment is provided for, but this is simply the method the company, which is a mutual one, has of securing the fund. The case is more nearly like Harl v. Insurance Co., 74 Iowa 39, 36 N.W. 880. See, also, Association v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60; Bacon, Ben. Soc. section 453; Niblack, Mut. Ben. Soc. sections 384-386. We think the action was properly brought at law.
II. One of the conditions of the policy is that it does not cover or extend to accidental injuries or death happening while the insured is under the influence of intoxicating liquors, or in consequence thereof. It is insisted that the evidence shows that the deceased was under the influence of intoxicating liquor when he received the injuries which caused his death, and that he walked off the railway bridge in consequence of his being intoxicated. There was a sharp conflict in the evidence on this question, and it was submitted to the jury under proper instructions. The jury found that the insured was not intoxicated, and with this finding we cannot interfere.
III. Another condition of the policy is that it shall not extend to or cover death caused directly or indirectly, wholly or in part, by voluntary exposure to unnecessary danger. It is contended that deceased went upon the bridge, which was private property of the railway company, on a dark night knowing it to be a dangerous place, and that he fell therefrom, struck his head so that he was stunned, and, falling into the water of the creek, was suffocated and drowned before he regained consciousness. The evidence shows that the bridge underneath which the deceased was found is an ordinary pile trestle-work railroad bridge, about fifteen feet high and something like one hundred and fifty feet long and thirty feet in breadth. The creek which it spans is from fifteen to twenty feet wide. On the north side of the bridge is a walk built originally as a sort of platform on which passengers from the trains might alight. This platform or walk is about five feet wide, and extends the entire length of the bridge. On the north side of the walk is a fence railing to prevent pedestrians from falling off. South...
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