Johnson v. Hawkeye Commercial Men's Ass'n

• Decision Date: 18 May 1915
• Docket Number: No. 29631.,29631.
• Citation: 152 N.W. 561,171 Iowa 425
• Parties: JOHNSON ET AL. v. HAWKEYE COMMERCIAL MEN'S ASS'N.
• Court: Iowa Supreme Court

171 Iowa 425

152 N.W. 561

JOHNSON ET AL.

v.HAWKEYE COMMERCIAL MEN'S ASS'N.

No. 29631.

Supreme Court of Iowa.

May 18, 1915.

Appeal from District Court, Marshall County; C. G. Lee, Judge.

Action on a certificate of insurance resulted in a decree as prayed. The defendant appeals. Affirmed.Bradford & Johnson, of Marshalltown, for appellant.

Boardman & Lawrence, of Marshalltown, for appellees.

LADD, J.

Francis P. Fredenhagen became a member of the defendant association November 6, 1911. He was on his way to the depot at La Grange, Ill., and in undertaking to pass over a stile in the fence along the tracks fell. This fence was made of pickets, and at this place there was an opening and two or three pieces of 1x2 or 2x4 were nailed crossways, so that one might step on these in going over. As he stepped on one of them and swung his foot over to go down on the other side, the piece on which his foot rested gave way, precipitating him on the track, where his legs were run over by an approaching engine and caboose. He died the same evening. This passage had been commonly used by the public for many years. He was in good standing in the defendant association, and in this action the administrators seek to recover an indemnity provided in section 2 of article 6 of the by-laws of the association, which provides that:

“Whenever a member in good standing shall through external, violent, or accidental means receive bodily injury which shall, independent of all other causes, result in death within 90 days from said accident, the beneficiary named in his application for membership, or his heirs if no beneficiary is named therein, shall be paid within 90 days after the receipt by the association, of proof satisfactory to the board of directors of said injuries and of the accidental cause thereof the proceeds of one assessment of $2.00 upon each member in good standing, but in no case shall such payment exceed the sum of $5,000.00, which shall be paid in full satisfaction of all liability of said deceased member, his beneficiary, heirs or legal representative, and shall be in lieu of the weekly indemnity due to said member.”

[1] It is not questioned but that death was occasioned through violent and accidental means, but defendant contends that, inasmuch as by the contract defendant was not to be liable if the assured was killed “when violating the law,” there can be no recovery. Matthes v. Ass'n, 110 Iowa, 222, 81 N. W. 484. This is on the theory that the common law was in force in Illinois, and therefore in going through the fence on to the railroad tracks defendant was committing the crime of trespass. At common law, however, a mere trespass on the land of another was not an indictable offense, and the injury, if any, could be redressed only in a civil action. To constitute a criminal offense the act must have amounted to a breach of the peace, or have had a tendency to break the peace. Bishop's New Cr. Law, §§ 518, 519; 2 McClain's Cr. Law, § 823. As said in State v. Mills, 104 N. C. 905, 10 S. E. 676, 17 Am. St. Rep. 706:

“To constitute the offense of forcible trespass, there must be either actual violence, * * * or such demonstration of force as was calculated to intimidate, or alarm, or involve, to tend to a breach of the peace. State v. Pearman, 61 N. C. 371. The show of force must be such as to create a reasonable apprehension of the adversary that he must yield to avoid a breach of the peace.”

The very gist of the offense is said to be the high-handed invasion of the actual possession of another. See Com. v. Taylor, 5 Bin (Pa.) 277; Henderson v. Com., 8 Grat. (Va.) 708, 56 Am. Dec. 160. It is manifest that, even though crimes at the common law are punishable in Illinois, there was no offense in the instant...