Becker v. Interstate Business Men's Acc. Ass'n of Des Moines, Iowa

• Decision Date: 29 April 1920
• Docket Number: 5368.
• Citation: 265 F. 508
• Parties: BECKER v. INTERSTATE BUSINESS MEN'S ACC. ASS'N OF DES MOINES, IOWA.
• Court: U.S. Court of Appeals — Eighth Circuit

265 F. 508

BECKER v. INTERSTATE BUSINESS MEN'S ACC. ASS'N OF DES MOINES, IOWA.

No. 5368.

United States Court of Appeals, Eighth Circuit.

April 29, 1920

Jean Madalene, of Wichita, Kan. (Thomas C. Wilson and Charles B Hudson, both of Wichita, Kan., on the brief), for plaintiff in error.

R. M Haines and Dunshee, Haines & Brody, all of Des Moines, Iowa and Kos. Harris and V. Harris, both of Wichita, Kan., for defendant in error.

Before SANBORN and STONE, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

Judgment was rendered in favor of the defendant in this action which was a suit to recover upon a beneficiary certificate issued by the defendant to the plaintiff's husband. The trial was to the court upon a stipulation of facts, and the questions presented are whether the pleadings and facts support the judgment. The parties will be referred to as they were named in the District Court. Plaintiff's husband a resident of Kansas, mailed a written application for membership, accompanied by the membership fee, to the defendant, a mutual assessment health and accident association incorporated under the laws of Iowa and having its principal place of business at Des Moines. Upon receipt of this communication at Des Moines, the defendant executed its certificate of membership to plaintiff's husband and deposited it in the mails, addressed to the insured at Wichita, Kan., and the insured received it there. The insured thereafter made the periodical payments required under the terms of the certificate by mailing them to the defendant at Des Moines. The plaintiff is the widow of the insured. The insured, while the certificate was in force, was injured by the discharge of a firearm and died as a result of that injury. The defendant was notified of the injury, and plaintiff furnished proofs of the injury and death; the proofs showing an injury to her husband by the discharge of a firearm and his death as the direct result of that injury. The defendant on October 30, 1917, notified the plaintiff that it rejected her claim, 'owing to the fact that the loss is not covered by the policy' issued to her husband. In the stipulation of facts is this statement:

'That the plaintiff is unable to produce any person who was an eyewitness to all the circumstances of the casualty, or to furnish any evidence showing by whom the firearm was discharged, or the manner and method by which said injury was produced, except as appears in the testimony of Mrs. Gladys Rummel and Miss Blanche Mustoe, who would testify as follows to wit: 'That on May 10, 1917, at about 10:45 p.m., Mrs. Gladys Rummel and Miss Blanche Mustoe, then and now residing at 726 N. Market, Wichita, Kansas, and adjacent to the spot where deceased was found wounded, while preparing to retire for the night on the said 10th day of May, 1917, heard a shot, followed by the exclamation, 'Don't shoot, Mister!. Don't Shoot!.' That the exclamation aforesaid was immediately followed by a shot similar to the first. That shortly after the firing of the shots the insured, Jacob P. Becker, was found near the sidewalk adjacent to the premises occupied by the said Mrs. Rummel and Miss Mustoe, and when found the said Jacob P. Becker was disabled by the gunshot wound, from which death resulted.' It is hereby further stipulated that neither Mrs. Rummel nor Miss Mustoe saw anything and cannot identify the voice.'

By the terms of the certificate the defendant agrees, 'subject only to the limitations, exceptions, and conditions contained in divisions 3, 4, 5, 6, and 7 of this certificate,' to pay to the member or beneficiary named certain benefits and indemnities 'for loss of life, limb, sight, or time, on account of bodily injuries sustained by the member,' while engaged in certain occupations, 'effected directly and independently of any other contributing, concurring, or intervening cause by external, violent and accidental means. ' After referring to the different sorts of losses more specifically, and grading the indemnities to be paid therefor, the certificate continues as follows:

'Excepted Risks.

'4a. The association shall not be liable for the payment of any sum whatsoever, if such injury be sustained at a time when the member is: (1) Insane; (2) not in the full possession and normal exercise of all his faculties; (3) engaging in any act in violation of any law or ordinance; (4) or if the injury be produced by the intentional act of a person whether sane or insane.

'Cases Requiring Special Proof.

'5a. There shall be no liability on the part of the association for the payment of any sum on account of a bodily injury produced by (1) the discharge of firearms; (2) poison; (3) or where the body is not recovered and fully identified, unless the claimant shall establish the accidental character of the injury by a person other than the member or the claimant, who was an eyewitness of all the circumstances of the casualty.'

The latter provision, embraced in division 5a, will for convenience be hereafter referred to as the 'eyewitness clause.' The plaintiff claims that the portion of this clause which declares that there shall be no liability unless the claimant shall establish the accidental character of the injury by a person, other than the member or the claimant, who was an eyewitness of all the circumstances of the casualty, is void and of no effect, because it is contrary to public policy. It is said to be against public policy, because it undertakes, by a contract between the parties, to define the evidence that may be used in an action on the certificate; that the courts may not be controlled in deciding what is legal evidence of death by a contract that only proof by an eyewitness shall be competent. It is the public policy in force in Kansas, where this action was brought, which is to be sought (The Kensington, 183 U.S. 263, 269, 270, 22 Sup.Ct. 102, 46 L.Ed. 190; Kennett v. Chambers, 14 How. 38, 52, 14 L.Ed. 316; Swann v. Swann (C.C.) 21 F. 299, 300; The Guildhall (D.C.) 58 F. 796, 799; Parker v. Moore, 115 F. 799, 802, 53 C.C.A. 369; Grosman v. Union Trust Co., 228 F. 610, 612, 143 C.C.A. 132, Ann. Cas. 1917B, 613; Story on Conflict of Laws, Sec. 244; 12 Corp.Jur. 439); and this public policy, if not controlled by the Constitution, treaties, or laws of the United States, or by the principles of the commercial or mercantile law or of general jurisprudence, is governed by the laws of the state as disclosed by the constitution or statutes or by the decisions of its highest courts (Hartford Ins. Co. v. Chicago, Milwaukee & St. Paul Railway Co., 175 U.S. 91, 100, 20 Sup.Ct. 33, 44 L.Ed. 84) .

Reliance is placed by plaintiff upon the decision in Travelers' Ins. Co. v. McConkey, 127 U.S. 661, 8 Sup.Ct. 1360, 32 L.Ed. 308, and other cases upon policies of insurance having similar provisions, as a declaration of this public policy. In the McConkey Case no question of the invalidity of any provision of the policy was decided. The policy provided that it did not extend to any case of death or personal injury, unless the claimant established by directed and positive proof that it was caused by external violence and accidental means. It was necessary to construe these terms, and it was held that the requirement of direct and positive proof did not make it necessary to establish the death and its circumstances by persons who were actually present at the injury. In support of a claim that the general principles of law condemn such a provision, plaintiff cites the decision of Utter v. Travelers' Ins. Co., 65 Mich. 545, 32 N.W. 812, 8 Am.St.Rep. 913; Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18; Reynolds v. Equitable Accident Ass'n, 59 Hun (N.Y.) 13, 1 N.Y.Supp. 738; Sovereign Camp of Woodmen of the World v. Robinson (Tex. Civ. App.) 187 S.W. 215; Bankers' Health & Accident Ass'n v. Wilkes (Tex. Civ. App.) 209 S.W. 230.

There are expressions of opinion in these cases, chiefly by way of dicta, that lend some support to plaintiff's contention by analogy. The theory sought to be upheld seems to be that the parties to a contract may not stipulate what evidence shall be received by the courts to prove the fact of an accidental death, but they ignore the contract of the parties that only a particular kind of death is insured against, and hence that it is only the fact of that particular sort of accidental death that is relevant. A contract to pay the amount of the policy only in case an injury or a death is proved in a certain and described manner is treated as though it were a contract to pay for such injury or death if it is proved in any manner. We see no reason why parties may not contract, if they so desire, that the insurance shall be paid only...