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

• Decision Date: 22 September 1917
• Docket Number: No. 31361.,31361.
• Citation: 164 N.W. 194,180 Iowa 1019
• Parties: MATHESON v. IOWA STATE TRAVELING MEN'S ASS'N.
• Court: Iowa Supreme Court

180 Iowa 1019

164 N.W. 194

MATHESON

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

No. 31361.

Supreme Court of Iowa.

Sept. 22, 1917.

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

Action at law to recover indemnity under a certificate of membership in defendant association. There was a trial to a jury, and a verdict and judgment for plaintiff for the amount claimed, $1,250, interest and costs. The defendant appeals. Plaintiff has also appealed from the ruling of the court in permitting defendant to amend its answer. Reversed on defendant's appeal and affirmed on plaintiff's.Sullivan & Sullivan, of Des Moines, for appellant.

Dowell, McLennan & Zeuch, of Des Moines, for appellee.

PRESTON, J.

Plaintiff alleges that he became a member of defendant association February 11, 1913. A copy of his certificate of membership and a copy of the articles of incorporation, and by-laws referred to therein are made a part of the petition; that such exhibits and application constitute the contract between the plaintiff and defendant; that on September 27, 1913, in the state of California, and while plaintiff was in good standing in defendant association, he sustained bodily injuries through external, violent, and accidental means, as follows: While plaintiff was riding in his buggy the horse became suddenly frightened, turned the buggy quickly, causing plaintiff to be thrown against the iron frame of the buggy, and to strike his left eye against the frame; that plaintiff did not then know he had received any injury which would result in any impairment in the sight of his eye; that he immediately consulted a physician and was advised that no injury had been done to the eye, and that plaintiff would not be incapacitatedas a result of the injury; that on January 29, 1914, the same physician advised plaintiff that he would totally lose the sight of said eye, and as a result of said injury plaintiff has totally lost the sight of his eye; that within 15 days from the time plaintiff had knowledge that said accident would result in the impairment of his sight, he notified defendant in writing of said accident and the injury therefrom; that one of the by-laws of defendant association provides:

“Or if such injuries shall result in the loss within ninety days from the date of said injury of the entire sight of one eye, the member shall receive as indemnity the sum of $1,250.”

Plaintiff further alleged that at the date of his injury, and at the time of the discovery of the same, he had lost the sight of his eye, and was therefore entitled to $1,250; that plaintiff has demanded the compensation provided in the contract, but that defendant has failed and refused, and now refuses, to pay any part thereof; that by reason of the said acts of injury resulting therefrom and by reason of his membership in said association, said sum is due plaintiff. For answer defendant denied all allegations of the petition; denied that plaintiff ever furnished any notice of injury, or proof of loss, or disability, within the time and in the manner and form provided in the by-laws, and that by reason thereof there is no liability on the part of defendant. For further answer defendant alleged that if plaintiff sustained bodily injuries as alleged, they were not sustained through external, violent, and accidental means. Afterwards, and by way of amendment to answer and over plaintiff's objection, defendant stated that it was provided in the contract sued on that:

“No action of any kind or character shall be commenced in any court against the association to recover any benefit or indemnity provided for in this article, unless the same shall be commenced within twelve months after the cause of action accrues, and after said period all liability of this association to such member, beneficiary or heirs for indemnity and benefits on account of such injuries shall cease and end.”

Defendant charged at the time of the commencement of this action more than 12 months had elapsed after the cause of action herein had accrued, and that by reason of all the foregoing there was no liability. As to the nature of the injury and the effects of it, after stating how it occurred, plaintiff, as a witness, says:

“A swelling immediately arose. In a few moments I realized that I could not see out of that eye. I called upon Dr. Thomas. Within an hour or so after the accident occurred the sight returned to the left eye for a few seconds, and then disappeared again, and has never returned since that time. I explained all these facts to Dr. Thomas, and he advised me to use hot and cold compress treatment, in the hope that the sight would be restored. Dr. Thomas explained to me on my first visit on September 29, 1913, that it would take three months treatment to accomplish the desired result. During all that time I applied the hot and cold compresses two or three times a day, and during all that time I was not able to see out of the eye. I had no sight in that eye from the time the injury was received, except a few moments that sight returned within an hour or so after the accident first occurred. I am now convinced, and state the fact to be, that the eyesight was totally, completely, and absolutely destroyed when it disappeared within an hour or so after the accident. When the three-month period treatment was up, I returned to Dr. Thomas, and he then made an examination and informed me that the eyesight was totally, absolutely, and forever destroyed, and the eye was totally and absolutely blind.”

Plaintiff testifies that he followed the treatment which the doctor had prescribed with the hope that, as Dr. Thomas had advised him, the sight might be restored, and that the first time the doctor advised him that the sight was gone was on January 12, 1914. He says the reason he did not notify defendant of the injury until after January 12, 1914, was because he relied upon the statements of the doctor that the loss of his eyesight might be restored if he followed the treatment. Plaintiff further testifies:

“My understanding of the condition of my left eye after the injury and at the time of my first consultation with Dr. Thomas was this: The sight of the eye was gone at that time, but there was hope that this was only temporary, and that the hot and cold compress treatment might restore the sight. Having this hope, I consented to follow the prescribed treatment, and did follow the same without successful result. The first time I knew that the eyesight was forever and absolutely gone was when I visited Dr. Thomas January 12, 1914. Before that time I knew, of course, that I could not see out of the eye, but I was in hopes that this absence of sight was only temporary, and that the treatment would restore the sight. I discovered the loss of my eyesight immediately after the accident, but the sight returned in an hour or two after the accident, but only for a few moments and then disappeared. I became totally blind in the left eye within an hour or two after the accident, which occurred September 27, 1913. I know now that I was totally blind in the left eye within an hour or so after the accident occurred, but I did not realize this until Dr. Thomas made his examination January 12, 1914.”

Plaintiff further states that after the doctor advised him that his eyesight was gone he notified defendant, and accordingly mailed a letter or notice to defendant February 18, 1914, as follows:

“Oakland, Cal. February 18, 1914.

Iowa State Traveling Men's Association, Mr. A. W. Rader, Secretary, Des Moines, Iowa--Dear Sir: The undersigned, James Lowe Christie Matheson notifies you, as follows: That I am the holder of certificate of membership No. 84467, of your association. That I am now and have been for the past twelve months employed as traveling salesman for Moore-Watson Dry Goods Company, Front and Market Street, San Francisco, California. On Saturday, September 27, 1913, as my stepson, John O'Donnell and I were riding in my buggy to the car line of Hayward, Alameda county, California, I met with an accident as described by Dr. Howard G. Thomas. As his notification gives a full report on the same there is no necessity for my going into further detail at present. That under the terms and conditions of your certification of membership, I am entitled to receive from the above association for the loss of my left eye, $1,250, which I ask you to forwardas soon as convenient for the association to do so. If the association has blank forms for notification of injury to its members, and blank proof of injury, I will ask you to forward any of such necessary blanks as you desire for me to fill, and I am willing to give you any other further proof of my injury that the association may require. I inclose herewith my physician's notification and report to the said Traveling Men's Association. Trusting that I may hear from you immediately and that you will forward all necessary blanks for me to fill out for such notification and proof of injury, I am,

Very sincerely,

James Lowe Christie Matheson.

No. 1202 Hampel Street, Oakland, Calif.”

This notice was received by the defendant company February 24, 1914. Dr. Thomas also sent a report to defendant, as follows:

“Physician's Notification and Report to the Iowa State Traveling Men's Association and to A. W. Rader, Its Secretary, of the Examination of James Lowe Christie Matheson.

The undersigned physician, Howard G. Thomas, M. D., notifies the said association as follows: That he is a duly licensed and practicing physician under the laws of the state of California, having his office at rooms 509-514, Dalziel Building, No. 532 15th street, Oakland, California. That on September 29, 1913, at about half past two o'clock p. m., thereof, the above-named James Lowe Christie Matheson came to my office for medical examination and treatment. He stated to me that on the preceding Saturday, viz. September 27, 1913, he had met with an accident when on his way to...