Binder v. Nat'l Masonic Acc. Ass'n

• Decision Date: 18 January 1905
• Parties: BINDER v. NATIONAL MASONIC ACC. ASS'N.
• Court: Iowa Supreme Court

127 Iowa 25

102 N.W. 190

BINDER

v.NATIONAL MASONIC ACC. ASS'N.

Supreme Court of Iowa.

Jan. 18, 1905.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Suit at law to recover on an accident certificate issued to W. E. Haverstock by the defendant on the 22d day of July, 1898. At about 11 o'clock in the night of July 27, 1901, Mr. Haverstock went into the bathroom in his residence for the purpose of taking his usual nightly bath, and about 30 minutes thereafter, he was found in the tub in a semiconscious condition. There were bruises on his head and body, his right leg and arm and the right side of his face and tongue were paralyzed, and he was unable to speak. He lived until May 12, 1902, never having recovered from his paralyzed and semiconscious condition. July 30, 1901, Horace T. Haverstock, a son of the deceased, notified the defendant of the accident to his father in the following letter: “Mr. W. E. Haverstock, holding certificate No. 27,819, was found in an unconscious condition in the bath tub on Saturday night, July 27th. He is still in an unconscious condition at this writing, and is unable to use his right arm or leg, and is considerably bruised all over his body. Dr. P. J. Montgomery is the attending physician.” August 7th the same son again wrote to the defendant, notifying it of the accident substantially as in the former letter. On the 14th of August the defendant answered as follows: “Horace T. Haverstock, Esq., Council Bluffs, Iowa--Dear Sir: I am in receipt of your communication dated August 7th and note contents. Replying, say, if your father is still unconscious, he may write us if he so desires after he becomes conscious, and we will correspond with him relative to anything pertaining to his membership with this association.” September 5th the defendant was advised that Mr. Haverstock “is still unable to speak, but has regained partial consciousness.” September 14th the defendant was again advised as to Mr. Haverstock's condition as follows: “Mr. Haverstock cannot at the present time, owing to his paralyzed condition, communicate with any one. While the symptoms are somewhat favorable, still his condition is critical. As soon as he may be able to make affidavit as to his injury, will have him do so, and mail to you.” The letter to the defendant of September 14th also stated that a claim for total disability was made, and affidavits as to the injury and condition of Mr. Haverstock were sent therewith. The defendant, through its secretary, answered this letter notifying Mr. Haverstock's representative that it did not intend to waive any of the provisions of the contract as to the proofs required, and saying further that it would in all respects stand upon the contract. It also contained this statement: “I also wish to say that personally I do not believe the association is liable or can become liable to Mr. W. E. Haverstock on account of his disability or the injury or affliction claimed to have been received by him July 27th.” In March, 1902, suit was brought against the defendant by the guardian of Mr. Haverstock. The petition alleged total disability, and asked judgment for $5,000 on account thereof. In July, 1902, the present plaintiff was substituted, and filed an amended and supplemental petition. Issue was thereafter joined, and the case tried to a jury, the trial resulting in a verdict for the plaintiff for $5,425. From a judgment on the verdict the defendant appeals. Reversed.Montgomery & Hall and Harl & Tinley, for appellant.

Flickinger Bros. and Clark Varnum, for appellee.

SHERWIN, C. J.

The by-laws of the defendant association provide that: “No benefits shall be due until ninety days after the receipt by the association of complete and satisfactory proofs. And no benefits shall be due until disability ceases, or the right to benefits has terminated. No suit shall be brought upon any claim against this association whether disputed or not before sixty days after the presentation to the association of completed satisfactory proofs.” Because of these provisions the appellant contends that this suit was prematurely brought, and should have been dismissed, and it relies chiefly upon the provision that “no benefits shall be due until disability ceases or the right to benefits has terminated.” It is said that by the terms of this provision no claim for disability can be made until the disability ceases by death, or by recovery, or by the expiration of the time during which a right to benefits has existed. Whether such is the correct construction of the provision depends largely upon the question whether the contract provides for the payment of a sum certain for “permanent total disability.” If it does, as we shall hereinafter attempt to show, it is clear that the provision is not applicable to such condition, because, if the certificate holder is entitled to a stated sum for a permanent total disability, the other provisions of the contract set out above, by implication at least, authorize the bringing of an action therefor at the end of either 60 or 90 days after presentation to the association of complete and satisfactory proofs. In other words, when the liability of the association and the amount thereof is fixed and certain under its contract, the amount becomes due at the end of the stated period, and the provision relied upon by the appellant applies only to disability for which weekly benefits only can be recovered. This conclusion is made clearly apparent when we consider the entire contract. It provides for the payment of a sum certain for the loss of different members of the body, and that such loss would constitute a disability is beyond question; and still the appellant's theory, carried to its logical conclusion, would prohibit a recovery therefor until after the death of the member. That such was not the intent of the provision is very manifest.

It is also claimed that the suit was prematurely brought, because it was commenced before the expiration of the period limited within which the association was entitled to make settlement before the bringing of suit. There is nothing in this contention because of the appellant's disavowal of liability six months before suit was brought and immediately after the proofs were presented to it. Moreover, the filing of the amended and supplementalpetition after the death of Mr. Haverstock and after every claim that could be made against the appellant had matured, was, in effect, the commencement of a new suit, and the substantial rights of the appellant have not in any way been prejudiced by a refusal to dismiss. Seevers v. Hamilton, 11 Iowa, 66;Sigler v. Gondon, 68 Iowa, 441, 27 N. W. 372.

The appellant's by-laws provide that no benefits shall be paid to the member or his beneficiary unless it shall be furnished with satisfactory proof that the disability or death was purely accidental and the direct result of an accident, and that the accident was the sole and only cause thereof. It is claimed that the proof furnished did not show accidental “permanent total disability,” and that there should have been no recovery therefor. That they showed a total disability is beyond dispute; and while they did not, and could not at that time, state whether the disability was permanent, the facts stated therein tended to show that it was, and before it was known certainly that the disability was permanent the appellant denied any liability for the injury, and hence further proof was not necessary. Stephenson v. Bankers' Life Ass'n, 108 Iowa, 637, 79 N. W. 459;Dyer v. Des Moines Ins. Co., 103 Iowa, 524, 72 N. W. 681. Mr. Haverstock was a member of Division B in class 1 of the defendant association. His application for membership was in writing on one of the appellant's application blanks, which, so far as material to this inquiry, was as follows:

+--------------------------------+
                ¦Class 1.¦Division B. ¦No.27,819.¦
                +--------------------------------+
                

APPLICATION FOR MEMBERSHIP IN THE NATIONAL MASONIC ACCIDENT ASSOCIATION, Des Moines, Iowa.

This application is not binding upon the Association until approved by the Secretary.

BENEFITS

+-----------------------------------------------------------------------------+
                ¦Death or  ¦Weekly Benefit ¦Weekly Benefit  ¦Loss of Hand ¦      ¦Loss of¦    ¦
                ¦Permanent ¦for Total      ¦for Partial     ¦and Foot,    ¦Loss  ¦Left   ¦Loss¦
                ¦Total     ¦Disability, not¦Disability, not ¦Both Hands,  ¦of    ¦Hand or¦of  ¦
                ¦Disability¦Exceeding 200  ¦Exceeding 26    ¦Both Feet, or¦Right ¦Either ¦One ¦
                ¦Benefit.  ¦Consecutive    ¦Consecutive     ¦Both Eyes.   ¦Hand. ¦Foot.  ¦Eye.¦
                ¦          ¦Weeks.         ¦Weeks.          ¦             ¦      ¦       ¦    ¦
                +----------+---------------+----------------+-------------+------+-------+----¦
                ¦Class 1   ¦$25.00         ¦$5.00           ¦$5,000       ¦$2,500¦$1,250 ¦$625¦
                ¦$5,000    ¦               ¦                ¦             ¦      ¦       ¦    ¦
                +----------+---------------+----------------+-------------+------+-------+----¦
                ¦Class 2   ¦20.00          ¦4.00            ¦3,000        ¦1,500 ¦750    ¦375 ¦
                ¦3,000     ¦               ¦                ¦             ¦      ¦       ¦    ¦
                +----------+---------------+----------------+-------------+------+-------+----¦
                ¦Class 3   ¦15.00          ¦3.50            ¦2,000        ¦1,000 ¦500    ¦250 ¦
                ¦2,000     ¦               ¦                ¦             ¦      ¦       ¦    ¦
                +----------+---------------+----------------+-------------+------+-------+----¦
                ¦Class 4   ¦12.50          ¦3.00            ¦1,500        ¦750   ¦375    ¦200 ¦
                ¦1,500     ¦               ¦                ¦             ¦      ¦       ¦    ¦
                +----------+---------------+----------------+-------------+------+-------+----¦

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