Matthes v. Imperial Acc. Ass'n

• Decision Date: 18 January 1900
• Citation: 81 N.W. 484,110 Iowa 222
• Parties: MATTHES v. IMPERIAL ACC. ASS'N.
• Court: Iowa Supreme Court

110 Iowa 222

81 N.W. 484

MATTHES

v.IMPERIAL ACC. ASS'N.

Supreme Court of Iowa.

Jan. 18, 1900.

Appeal from district court, Johnson county; M. J. Wade, Judge.

Action on a policy of accident insurance, to recover indemnity for a total disability. The action was in equity, asking an order on the officers to pay the amount claimed out of any funds on hand, and in case of a deficiency to levy an assessment for the balance due, and for general equitable relief. There were various defenses, which will be noticed in the opinion. The court rendered judgment for plaintiff, and ordered it paid “out of any fund in the hands of the defendant company or its officers,” and further ordered that in case said fund should prove insufficient the company “proceed to exhaust any means given to it under the law” to raise money to pay the same. From the judgment, defendant appeals. Affirmed.Baily, Ballreich & Preston, for appellant.

Remley, Ney & Remley, for appellee.

WATERMAN, J.

Plaintiff was injured while attempting to get some pigeons from the cupola of a barn. He was in a rope sling that moved by means of a truck upon the track of a hay carrier some 30 feet above the barn floor. As he was moving himself along, something about the truck broke, and he fell to the floor, sustaining injuries which resulted in his total disability for a period of one year, and which will cripple him for life. The articles of incorporation, which the policy recites are a part of the contract, contained a provision that the policy should not cover disability “when caused directly or indirectly, wholly or in part, by * * * voluntary or unnecessary exposure to danger or obvious risk. * * *” It is insisted that plaintiff at the time of his fall was voluntarily and unnecessarily exposing himself to obvious danger. The facts are that plaintiff was a house painter, and was insured as such. He was accustomed to working at great heights. He had worked in a rope sling on a church spire 80 feet above the ground; had painted another spire 120 feet high. He had used this particular apparatus before. On the occasion of his accident he examined it carefully, and thought it was safe. We do not think he had reason to apprehend danger. The height that he was above the floor had nothing whatever to do with the accident. The danger was not, as to him, obvious. Was it unnecessary exposure? We think not, for the evidence shows that he was attempting to get the pigeons to serve as food for himself and family. See Casualty Co. v. Sittig (Ill. Sup.) 54 N. E. 903.

2. The accident happened on Sunday. Another provision of the articles of incorporation relieves the company from liability if the disability was incurred “while violating the law.” It is insisted that when plaintiff fell he was violating section 4072, Code 1873, which prohibits labor on Sunday except in cases of necessity or for charity. We have to say on this branch of the case that it does not appear but that plaintiff wanted the pigeons for a Sunday meal, and, if so, such necessary domestic avocation as getting and preparing them would not fall within the class of labor that is prohibited by this section. The burden was on defendant to prove a violation of this condition. Sutherland v. Insurance Co., 87 Iowa, 505, 54 N. W. 453. We may further suggest on this question that the violation of law mentioned in the policy is evidently intended to comprehend acts that will avoid the risk if done at any time. They must be in the nature of contributing causes, and not mere conditions of the accident. In this case the risk would have included plaintiff's acts if done on a secular day. Therefore we can see no reason why it should not cover them when done on Sunday. See Schmid v. Humphrey, 48 Iowa, 652;Gross v. Miller, 93 Iowa, 72, 61 N. W. 385, 26 L. R. A. 605.

3. The policy, on its face, provides for the payment of a weekly indemnity of $15 for a period not exceeding 52 weeks. We have seen that plaintiff suffered a total disability, which continued for the entire time provided for. Therefore he is apparently entitled to recover the sum of $780. But it is asserted that defendant has no funds on hand, or means with which to pay this loss, save and except from an assessment on the members of plaintiff's class; that by the terms of the contract it is provided that, if defendant had no surplus fund on hand, plaintiff is to accept the amount of an assessment levied upon the members of his class, in full settlement of all claims under his policy. It is further averred that plaintiff was a member of class A, and that an assessment on the members of that class produced the sum of $35.44, which is the extent of defendant's liability, if it is to be held at all. Defendant claims to have been organized under chapter 1, tit. 9, Code 1873, and chapter 65, Acts 21st Gen. Assem. as a mutual benefit or assessment company. But we find that it charged a fixed and level premium, and had no power to make assessments of any kind to pay losses. If there is a question, as suggested by appellee, whether an association which charges a level premium, as in this case, is entitled to the benefits of the act of the general assembly to which we have referred, we do not feel called upon to pass on it. Assuming the defendant association to be properly organized, as claimed, we shall proceed to a consideration of its acts in dealing with plaintiff. We are not concerned with the matter of what defendant might have done under its articles of incorporation, but only with what it in fact did. The policy is for $3,000 in the event of death, with a weekly indemnity in case of total disability of $15 per week for a limited period. This promise is made without qualification in the first instance, but towards the close of the policy we find this provision: “That, in case the reserve or surplus fund is exhausted when the policy becomes a claim, the amount to be paid shall be dependent upon the amount collected from an assessment made to meet such claim.” But it will be seen further on that nowhere is the association given any power or authority to make an assessment for the purpose of paying losses. This should be borne in mind, for we are now endeavoring to ascertain what knowledge the policy holder might have gained of his rights, had he instituted an investigation at the time he became a member. The provision for payments by members is as follows: “For the purpose of defraying the expenses of the association, and providing the funds to pay the benefits and losses by death, there shall be paid by each member, either in cash or by note, the following sums: Section 1. As membership fees: For certificate or policy A1, $3.00; for certificate or policy A. or A1 Lim., $2.00; for certificate or policy AA, or A Lim., $1.50. Sec. 2. Each holder of a certificate or policy shall, within 30 days after the same has been issued, pay to the Sec., at the home office of the association, an advance assessment, and additional assessments thereafter as the terms of said certificate or policy shall require, or as may be required by these articles. For these purposes, as herein set forth, the members of this association shall pay to the association the following sums as an advance assessment: Members or holders of certificate or policy AA, $1.50; members or holders of certificate or policy A, $2.25; members or holders of certificate or policy A1, $3.00; members or holders of certificate or policy A Lim., $2.00; members or holders of certificate or policy A1 Lim., $3.00. Sec. 3. Each member shall be required to pay annually, in addition to the membership fee, the following sums, to wit: $6.00 annually on certificate or policy AA; $9.00 annually on certificate or policy...