Jenkins v. Hawkeye Commercial Men's Ass'n
| Decision Date | 11 January 1910 |
| Citation | 124 N.W. 199,147 Iowa 113 |
| Parties | EMMA JENKINS v. HAWYEYE COMMERCIAL MEN'S ASSOCIATION, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED, MONDAY, APRIL 11, 1910.
Appeal from Dubuque District Court.--HON. ROBERT BONSON, Judge.
ACTION in equity to require defendant to levy an assessment on its members and pay the proceeds thereof to plaintiff as beneficiary named in a certificate of insurance. Decree was entered as prayed. The defendant appeals.
Affirmed.
Bradford & Johnson, for appellant.
Hurd Lenehan & Kiesel, for appellee.
On August 20, 1906, George Jenkins became a member of the Hawkeye Commercial Men's Association. This entitled him in event of being injured "through external, violent and accidental means," to certain specified benefits. If the bodily injuries so received "resulted in death within twenty-six weeks from said accident, the beneficiary named in his application for membership or his heirs if no beneficiary is named therein, shall be paid the proceeds of one assessment of two dollars upon each member in good standing but in no case shall such payment exceed the sum of five thousand dollars." He died August 26, 1907, and, the defendant having refused to levy an assessment or make any provision for the payment of the indemnity, this action to enforce compliance with the articles and by-laws of the association was begun in the district court of Dubuque County, April 22, 1908.
I. As no answer had been filed, the plaintiff had the right to amend his petition without leave and, having done so, the court rightly considered the petition as amended in passing on the motion for change of venue. Kay v. Pruden, 101 Iowa 60, 69 N.W. 1137.
And as the loss occurred in Dubuque County, the action was maintainable there, and the application to transfer the cause to Marshall County, the location of defendant's main office, was rightly overruled. See section 3499, Code; Prader v. Accident Association, 95 Iowa 149, 63 N.W. 601; Matt v. Iowa Mut. Aid Ass'n, 81 Iowa 135, 46 N.W. 857. See Grimes v. N.W. Legion of Honor, 97 Iowa 315, 64 N.W. 806.
II. The assured was sixty-one years of age, and in good health. He first complained of a severe pain in the rectum at about seven o'clock in the morning of April 22, 1906, when at his son's residence in Chicago, Ill., saying that something must have lodged there. He cleansed his hand, and, putting vaseline on his finger, inserted it in the rectum, and withdrew therefrom the rib of a fish one and one-half inches in length, and as large as a darning needle, tapering toward the end. Upon extracting his finger, it and the bone were bloody. He was a traveling passenger agent, and left on business about an hour later, though still complaining of pain which his appearance indicated. He reached Dubuque the following day, and, on examination, Dr. Greene discovered a laceration of about three-eighths of an inch in length inside of the rectum, and through the mucous membrane. Dropping a bit of absorbent cotton in a solution of equal parts of chloride hydrate, tincture of iodine, and carbolic acid, he touched the wound with it, and advised the patient that he saw no cause for apprehension of serious danger, but that he should not move about more than necessary. Deceased returned the next day, complained that he had been obliged to attend to some business, was suffering pain, and asked for something to relieve him. This was given, with directions, and with advice to remain at home. The day following the physician found him in a high fever, unable to pass urine with the parts surrounding the anus swollen and suffering great pain. Two days later Dr. Lewis was called in consultation, and both physicians testified on the trial that death resulted from blood poisoning due to infection from the fish bone or deceased's finger in removing it. Conceding the facts to be as recited, defendant contends that they do not show death to have been the result "of external, violent and accidental means." It is to be kept in mind that the means, not the injury, must have been of the nature stated.
In Healey v. Association, 133 Ill. 556 (25 N.E. 52, 9 L. R. A. 371, 23 Am. St. Rep. 637), death by poison accidentally taken was held to be by violent and external means, and a like conclusion was reached in Paul v Travelers' Ins. Co., 112 N.Y. 472 (20 N.E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758), where the assured died from the accidental inhalation of illuminating gas. In American Accident Co. v. Reigart, 94 Ky. 547 (23 S.W. 191, 21 L. R. A. 651, 42 Am. St. Rep. 374), while the assured was eating, a piece of meat lodged in the wind pipe, causing death, and this was held to be through violent and external means. In Maryland Casualty Co. v. Hudgins (Tex. Civ. App.), 72 S.W. 1047, the assured ate two raw oysters before discovering they were unsound, and his death was caused by these lodging in the upper part of the intestines, inflaming the mucous membrane, and causing the same to enlarge and obstruct the passage. The eating was held to be accidental; the court quoting with approval from 1 Cyc. 249: "Where, however, the effect is not the natural or probable consequence of the means which produce it--an effect which does not ordinarily follow, and can not be reasonably anticipated from the use of the means, or an effect which the actor did not intend to produce, and which he can not be charged with a design of producing--it is produced by accidental means." See...
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