Howes v. Iowa State Traveling Men's Ass'n

• Decision Date: 29 November 1912
• Docket Number: 116-M.
• Citation: 241 F. 278
• Parties: HOWES v. IOWA STATE TRAVELING MEN'S ASS'N.
• Court: U.S. District Court — Southern District of Iowa

241 F. 278

HOWES v. IOWA STATE TRAVELING MEN'S ASS'N.

No. 116-M.

United States District Court, S.D. Iowa, Central Division.

November 29, 1912

James E. Fenton, of San Francisco, Cal., and Miller & Wallingford of Des Moines, Iowa, for plaintiff.

Sullivan & Sullivan, of Des Moines, Iowa, for defendant.

Remarks by the Court on Motion of the Defendant for Peremptory Direction of Verdict.

McPHERSON District Judge.

Neither party having further testimony to offer, the defendant moves the court for a peremptory direction to the jury to return a verdict for the defendant.

There is no proposition of law better settled than that such a motion should be sustained or overruled accordingly as to whether the court is of the opinion that a verdict otherwise given should be followed by judgment thereon, or order such verdict be vacated on motion for new trial. The Iowa courts so hold, and such holding is uniform in all the courts of the United States. The reason of the rule is logical and apparent. It would be folly and a mere waste of time, adding materially to the expense of litigants, if a verdict should be received from the jury, at once followed by an order vacating the same. The province of the jury is to make findings of fact on controverted and material questions of fact. If reasonable men would differ as to such a verdict, it is a question for the jury. If it is apparent that the jury can otherwise find, such motion should be overruled. These fundamental propositions, conceded by all, must control me in the ruling I am about to make.

The plaintiff herein is the beneficiary under a certificate issued by the defendant August 2, 1909, pursuant to the application of deceased made a few weeks prior thereto. The insured died on January 4, 1911.

Up to the time immediately preceding his death, he had complied with all the rules and regulations and by-laws of the defendant company. He was not in arrears for dues or assessments. Therefore the only question is whether or not the injury by a gunshot wound in the head in the nighttime of January 4, 1911, comes within the liability clauses of the certificate and by-laws and the application of Mr. Howes. That he died instantly following the gunshot wound in the head there can be no doubt. That both the insured and his beneficiary, the wife, are bound by the by-laws, there can be no doubt. The defendant company is a mutual assessment company, with full power on the part of its board of directors and officers to change the by-laws from time to time. But in so far as the same respects this case there was no change in the by-laws from the time of his application until his death. But, even if there were, the insured would be bound thereby, notwithstanding that which every one knows who is familiar at all with insurance matters, that the insured, except in rare instances, have nothing whatever to do with these changes. These changes are brought about by those in authority, who too often perpetuate themselves in office with never an attendance of the members, excepting in very limited numbers, excepting in instances where there are excitements growing up from the strife for position and the excitement of some election of officers.

The by-laws are exceedingly technical, and too often too technical to meet the approval of men of experience, on almost everything except as to the payment of premiums or assessments. Usually there are many times more technicalities in such companies by way of defensive matters than are to be found in the policies issued by insurance companies. But those matters have nothing to do with this case except to invoke the well-known rule that, if the by-laws and certificate are susceptible of two or more constructions, the court must adopt that one construction most favorable to the insured and the beneficiary. I mention these matters because of the defenses pleaded under section 6 of article 6 of the by-laws, one of which reads that there shall be no liability 'from any injury resulting from the discharge of firearms when there is no eyewitness to the discharge, except the member himself. ' There are five or more defensive matters in that section. In some instances such defensive matters refer specifically to death; but it will be observed that as to the clause just quoted the word 'injury' is used, and the word 'death' is not used. I am partially-- and only partially-- inclined to believe that observing the proper rule of construction, as before stated it means, in a case of alleged liability, where there is an injury followed by death. But without ruling specifically on the question, I pass that by.

The burden of proof is on the plaintiff to show that the injury resulting in a death was accidental. There was no eyewitness. The presumption of the law is, as gained from long time experience, and the belief existing in every man's mind that all persons of sound mind, whatever the age may be desire to live. A person old in years, fully believing in a future state of happiness, may truthfully say that he is ready to die; but he will also truthfully say that he does not yet desire to die. That presumption stands as an affirmative fact in favor of the insured, but it is not a conclusive presumption. It is to be weighed in...