Collins v. Bankers' Acc. Ins. Co.

• Decision Date: 24 October 1895
• Citation: 64 N.W. 778,96 Iowa 216
• Parties: MARIE COLLINS v. THE BANKERS' ACCIDENT INSURANCE COMPANY, et al., Appellants
• Court: Iowa Supreme Court

64 N.W. 778

96 Iowa 216

MARIE COLLINS v. THE BANKERS' ACCIDENT INSURANCE COMPANY, et al., Appellants

Supreme Court of Iowa, Des Moines

October 24, 1895

Appeal from Tama District Court.--HON. JOHN R. CALDWELL, Judge.

Edward Drahos was a member of the defendant company, and as such he held a certificate entitling the plaintiff as beneficiary therein, to five thousand dollars in case of his death by accident. On the thirteenth day of July, 1893, Edward Drahos was accidentally drowned, and this action is in equity to compel the officers of the company to make an assessment upon the membership of the company, in accordance with the terms of the agreement, to pay the amount due. Issue was taken on the petition and on the trial thereof judgment was given for the plaintiff, and the defendant appealed.--Modified and affirmed.

Modified and affirmed.

Guernsey & Bailey for appellants

Stiger & Struble for appellee.

Granger J. Kinne, J., took no part.

OPINION

Granger, J.

I.

A ground of defense is that the death of Drahos resulted from a voluntary exposure to unnecessary danger. Drahos was one of a fishing party camping on the Iowa river. The party had lines set out with hooks, and Drahos, with one Crossman, took a boat and went out to inspect them. It was in the night, and dark, and as they were returning the boat struck a limb or tree, in the water, and upset, and Drahos was drowned. A by-law of the defendant company provides that it shall not be liable for injuries or death resulting from voluntary exposure to unnecessary danger, because of which, and the particulars as to the death of Drahos, defendant urges that the judgment should be reversed. The party reached the river about 6 o'clock in the afternoon, and before it was dark and put out their lines. It seems that in the water there were snags and trees, or at least one tree. The limb that upset the boat was "almost in the water; could hardly be seen." The snags seem to have been under the water. From the evidence, we understand that there was nothing observable, by looking at the water, to show it dangerous to go on in a boat. It does not appear that Drahos knew of the snags, even if he knew of the tree that was partly in sight. The provision of the certificate containing the clause referred to exempts the company from liability for injuries resulting from dueling, fighting, wrestling, lifting, over-exertion, or riding or driving races, or voluntary exposure to unnecessary danger. Fishing as a pastime or business, is not included, in terms, and it could not well be said but that he had a right to go on the water in a boat to fish; that is, such fishing could not be regarded, in itself, as "unnecessary danger." Nor do we believe that the contract contemplates that going in a boat to fish, in a dark night, is such danger, in the absence of other facts. If it be conceded that the place where Drahos was drowned was dangerous, there is not enough to defeat a recovery. Before he could voluntarily expose himself to danger he must know of the danger, and it does not appear that he had such knowledge. The mere presence of a tree did not make it dangerous to go on the water. It does not appear that he knew, when on the water, that he was near the tree, or in danger because of it. Other elements of danger were concealed, or, at least, so much so that we cannot assume that, from observation, while there, he knew of them. It seems to us that the evidence fails to show a voluntary exposure to danger. The case is very unlike Shaffer v. Insurance Co. (Ill. Sup.) 22 N.E. 589, and Insurance Co. v. Jones, 7 S.E. 83. In those cases, and others cited, the facts giving rise to the danger were known, and the party was aware of the risks he was taking.

II. The party with which Drahos was had suspended a line over the river from bank to bank, and had hooks attached thereto, to make what is known as a "trot-line." Drahos and Crossman, when the accident happened, had been to inspect this line and other hooks that had been set out, and were on their way to the shore, and near it, when upset. The following is a section of chapter 34, Acts Twenty-third General Assembly: "Sec. 6. No person shall place, erect or cause to be placed or erected, in or across any of the rivers, creeks, lakes, or ponds, or any outlets or inlets thereto, any trot-line, seine, net, weir, trap, dam or other obstruction in such a manner as to hinder or obstruct the free passage of fish up, down or through such water course for the purpose of taking or catching fish unless the same be done under the supervision of the fish commissioner, except minnows, as provided in ...