Jones v. U.S. Mut. Acc. Ass'n of City of N.Y.

• Decision Date: 15 December 1894
• Citation: 92 Iowa 652,61 N.W. 485
• Parties: JONES v. UNITED STATES MUT. ACC. ASS'N OF CITY OF NEW YORK.
• Court: Iowa Supreme Court

92 Iowa 652

61 N.W. 485

JONES

v.UNITED STATES MUT. ACC. ASS'N OF CITY OF NEW YORK.

Supreme Court of Iowa.

Dec. 15, 1894.

Appeal from district court, Pottawattamie county; H. E. Deemer, Judge.

Action on an accident insurance policy. Verdict and judgment for plaintiff, and defendant appeals. Reversed.Breckenridge & Breckenridge and L. F. Crofoot, for appellant.

Sims & Bainbridge, for appellee.

KINNE, J.

1. April 8, 1891, the defend ant company issued its policy of insurance upon the life of one W. M. Jones, in the sum of $5,000, against “personal bodily injuries, effected during the continuance of membership and this insurance, through external, violent, and accidental means.” Among the conditions of said policy were the following: “The insurance under this contract shall not extend to or cover * * * accidental injuries or death resulting from or caused, directly or indirectly, wholly or in part, by * * * fighting; * * * or voluntary exposure to unnecessary danger; nor extend to or cover accidental injuries or death happening while the insured is under the influence of intoxicating drinks, or in consequence thereof; or while or in consequence of violating the law.” And also: “The provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this contract, are conditions precedent to the issuance hereof, and to its validity and enforcement.” The application upon which the policy was based contained the following statement: “(13) My habits of life are correct and temperate, and I agree that the certificate of membership shall not cover any injury which may happen to me while under the influence of intoxicating drinks or narcotics, or in consequence of having been under the influence thereof.” The policy was made payable to plaintiff. The petition charges “that on or about the 31st day of May, 1892, at Council Bluffs, Iowa, and whilst the said policy of insurance was in full force and effect, and without any fault or negligence on the part of the assured, he, the said W. M. Jones, was mortally wounded by a pistol ball fired by one John Wade,” and that he died as a result thereof. It is also averred that proper proofs of death were sent to and received by the company in due time. A copy of the application and of the policy is attached to the petition. The answer admits the issuance of the policy and the death of the assured, but denies that his mortal wound “was received without his fault and negligence.” Admits that due proofs of death were received by the company within the time fixed in the policy, but denies that such proofs established that the death of Jones was caused by external, violent, and accidental means. Pleads the provision of the application above set out, and numbered 13, also the provisions of the policy heretofore set out, and avers “that said Jones was addicted to the use of intoxicating liquors, and was in the habit of associating with lewd women and visiting houses of ill fame, and at the time he received the mortal wound, from the pistol shot of which he died on June 5, 1892, he was, and had been during a period of several days, and certainly for several hours, in a drunken debauch, under the influence of intoxicating liquors; and the shot which ended his life was received by him during a quarrel which began in a brothel, while he was under the influence of intoxicating liquors, and in consequence of his having been under the influence of intoxicating liquors, which quarrel terminated in a fight with pistols or revolvers, in the course of which Jones killed the man who shot him.” Defendant denies that said W. M. Jones came to his death by violent, external, and accidental means, but alleges that his death was not accidental, and that at the time he received the mortal pistol wound, of which he died, he was under the influence of intoxicating liquors, and that the pistol-shot wound that caused his death was received by him in consequence of his having been under the influence of intoxicating liquors, and in consequence of his quarreling and fighting, and in consequence of his exposure to unnecessary danger at the time he was shot, and while in consequence of his violation of law, in being intoxicated, in visiting a house of ill fame for an unlawful purpose, in carrying a concealed weapon, and in fighting.” The cause was tried to a jury, and a verdict returned for the plaintiff for the amount claimed.

2. To a proper understanding of the case, it becomes necessary to state the facts surrounding the death of the assured: He was the manager, for the state of Nebraska, of the business of the Sandwich Manufacturing Company, of Sandwich, Ill., and resided in Council Bluffs, Iowa. On Sunday afternoon, May 30, 1892, Jones was at Lake Manawa, a resort near Council Bluffs. He returned to the city towards evening, and from near 7 o'clock p. m., up to a short time be fore he was shot, he had, in company with one Mahr, a disreputable character, visited several drinking places, and drank liquors. About 11 o'clock p. m., Jones and Mahr visited a house of ill fame, and while there drank beer. While in this place, Jones attempted to make arrangements for two of the inmates to go with him and his companion to a “road house,” and he ordered a hack for that purpose. Meantime, the proprietress of the establishment, being unwilling for the inmates to go, raised her price, and the trip was abandoned. Jones, Mahr, and Wade (who had responded to the call for a hack) left the house, and went out onto the street, at about midnight. After they reached the sidewalk, Jones and Mahr started to go down the street, when some controversy arose about paying for the hack. Wade asked them if he was not going to get anything for his hack. Jones said to Wade, “How much do you want?” Wade said he thought one dollar would be about right for coming out at that time of night. Mahr did not want Jones to pay anything for the hack. Colgan, who was the hack driver, told Mahr there was no use talking that way; they could not fetch out a hack for nothing. Mahr then said he would give Colgan something to fetch out a hack for, and struck at him with his cane. When Mahr did this, Colgan started to run. As he did so, he turned around, and saw Mahr was close behind him, and Jones right behind Mahr. Jones reached to his hip pocket, and took something out, and then Wade said “to stop, or he would shoot.” Colgan continued to run up the street, with Mahr after him, and at once several shots were fired; and shortly after Wade was found shot through the body, and died in a few minutes. A little distance away, Jones was picked up, having also been shot, from the effects of which he died in a few days thereafter. Jones was seen to have a revolver and a billy upon his person while in the bawdyhouse. There was much testimony tending to show that Jones had been drinking intoxicating liquor during the evening, and that he was noticeably under the influence of it. On the contrary, much evidence was introduced showing that he was not under the influence of liquor. In answer to certain special interrogatories submitted to them, the jury found that Jones was not intoxicated that night; that he was not under the influence of intoxicating liquors when he was shot, or during the night; and that he did not, prior to the shooting, take part in a quarrel which terminated in a fight with revolvers, in which he was shot and killed Wade.

3. At the close of the testimony, defendant filed a motion in arrest of judgment, claiming that the petition did not state a cause of action, in that it failed to aver that none of the conditions upon which the policy was issued were “breached” by the assured. This motion was overruled, and an exception taken. Defendant's contention is that it was only to be liable in case of death of the assured in the absence of certain conditions stated in the policy, and that it was incumbent upon the plaintiff to negative these exceptions in his petition. The question then is, must these conditions or exceptions, the existence of which may relieve the defendant from liability, be pleaded by plaintiff, or are they so far matters of defense as that the burden is upon the defendant to plead and prove them? In our judgment, they were not required to be pleaded or proven by plaintiff. They were purely matters to be relied upon in defense of an action on the policy. Defendant insured Jones, “subject to the by-laws and all the conditions indorsed hereon [on the policy], against personal bodily injuries effected during the continuance of membership and this insurance, through external, violent, and accidental means.” On this policy it is said, “The conditions under which this certificate is issued and accepted by the insured are as follows.” Then follow the several provisions that the contract shall not extend to or cover certain cases, theretofore mentioned. At the end of these conditions it is said, “The provisions and conditions aforesaid, and a strict compliance therewith during the continuance of this contract, are conditions precedent to the issuance hereof, and its validity and enforcement.” It ought to be said that the fact that the contract says that certain provisions of it shall be conditions precedent does not, of necessity, make them such. We cannot accede to the doctrine that the provisions under consideration are conditions precedent. A condition precedent, as applied to the contract, is a condition which must be performed before the agreement of the parties becomes a valid contract. Redman v. Insurance Co., 4 N. W. 595, 49 Wis. 431. The conditions in this case were that the contract should not cover accidental death resulting from or caused by fighting, voluntary exposure to unnecessary danger, intoxication, or to death in consequence thereof, and in consequence of violating the law. Not one of these conditions were to happen prior to the time the contract between the assured and the...