Moon v. Order of United Commercial Travelers of America
| Decision Date | 17 April 1914 |
| Docket Number | 17,693 |
| Citation | 146 N.W. 1037,96 Neb. 65 |
| Parties | LIBBIE MOON, APPELLEE, v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.
AFFIRMED.
Greene Breckenridge, Gurley & Woodrough and Vorys, Sater, Seymour & Pease, for appellant.
A. W Jefferis, contra.
The defendant, a fraternal accident association insuring the lives of its members against death by accidental means and for accidental injuries, appeals from a judgment of the district court for Douglas county.
It appears that the defendant is a corporation organized under the laws of the state of Ohio, and it is authorized to do business in Nebraska, and that it conducts its business upon the mutual assessment plan. On or about April 12, 1907, John W. Moon, the decedent, became a member of the Order of United Commercial Travelers of America, and received his certificate of membership and insurance on his life. The plaintiff, Libbie Moon, is the widow of the said John W. Moon, and she is his beneficiary. John W. Moon died in Omaha, Nebraska, February 16, 1911. The plaintiff filed her petition in the district court for Douglas county May 9, 1911. On the 28th day of May, 1912, plaintiff recovered a judgment assessing her damages in the sum of $ 6,606.25.
Section 5, article VI of the constitution of the association, provides: "If any member of the order (other than a social member) who has paid, when due, all fees, fines, costs, dues and assessments charged or levied against him, shall sustain, during the continuance of his membership, and while in good standing, bodily injury effected through external, violent and accidental means, which, alone and independent of all other causes, shall occasion death immediately or within six months from the happening thereof, the Order of United Commercial Travelers of America, within ninety days of receipt of satisfactory proof of said accidental death, shall pay to the person or persons entitled thereto the sum of five thousand ($ 5,000) dollars, and shall also pay to the person or persons entitled thereto, as aforesaid, thirteen hundred ($ 1300) dollars in weekly instalments of twenty-five ($ 25) dollars each, the first of such weekly instalments to be paid within ninety days from the receipt of such proof of death."
It is alleged in the petition that said Moon, up to and including the day of his death, paid all fees, fines, costs, dues and assessments charged against him by the defendant, and at the time of his death was an active member in good standing in the order and entitled to all rights and benefits under its constitution; that on February 16, 1911, said John W. Moon sustained a bodily injury effected through external, violent and accidental means, which injury, alone and independent of all other causes, occasioned his death; that said Moon on that day, while walking up the steps leading into his yard, accidentally slipped and fell with force and violence, and that his external body about and near the region of his heart struck upon a large stone with such force as to injure the left auricle of his heart, and also injured his body upon its external surface, and that the said injury so effected through said means, alone and independent of all other causes, occasioned the death of said Moon in about half an hour after he received said injury; that after the death of her husband plaintiff as his beneficiary performed all the conditions required of her by the defendant association, and permitted an autopsy to be held upon the remains of her said husband as demanded by the defendant, and furnished the defendant with notice and proofs of her husband's death in support of her claim under the certificate hereinbefore mentioned. The prayer was for judgment for $ 6,300, with interest at 7 per cent. from the 20th day of March, with costs of suit.
On the 12th of February, 1912, the defendant filed its amended answer, setting up that it is a corporation organized under the laws of the state of Ohio as a fraternal beneficiary association for the purpose of uniting fraternally all commercial travelers, and providing, among other things, for the establishment and maintenance of an indemnity fund for the protection of its members from accidental injuries and their beneficiaries against death resulting from accidental means; that it admitted that said John W. Moon, on or about April 12, 1907, became a member of the order, and that the certificate set out in the petition was issued to him, and that he continued to be a member of the order in good and regular standing until the time of his death, and that all fees, fines, costs and dues charged against him as a member of the order were paid at the time of his death; that section 5 of article VI of the order was in the terms stated in the petition; that after the death of the said John W. Moon, and by and with the consent of the plaintiff, and in accordance with the provisions of section 9 of article VI of the constitution and bylaws of the order, an autopsy was held upon the body of the deceased, and that thereafter defendant denied any and all liability to plaintiff under and by reason of the terms of the contract existing between the order and the said John W. Moon at the time of his death, and refused and still refuses to pay to the plaintiff the sum of $ 6,300 or any part thereof; that said association denied all the allegations of the petition not expressly admitted to be true; that the defendant, for its second and separate defense, alleged, in addition to the provision hereinbefore quoted, that it was further provided in said section 5 of article VI of the constitution and by-laws of the order that "payments authorized under the provisions of this section shall not cover or extend to any death, disability, or loss resulting from or in consequence of fighting, duelling, over-exertion; * * * nor to any death, disability or loss resulting from or in consequence of bodily infirmity or deformity * * * mental infirmity, fainting spells, fits, epilepsy or vertigo; * * * nor to any death, disability or loss which results from or in consequence of the insured having been or being to any degree under the influence of intoxicating liquors, drugs or narcotics; * * * nor to any death, disability or loss of which there is no external or visible mark of the accident on the body (the dead body not being such a mark except in cases of drowning); nor to any death, disability or loss which results from or in consequence of any disease; nor to any death, disability or loss caused wholly or in part by bodily infirmity or disease; nor to any death, disability or loss, unless caused by bodily injury which is external, accidental, and is the proximate, sole and only cause of the death, disability or loss;" that said provision last quoted related to and was a condition upon the provisions of that part of section 5 of article VI of the constitution and by-laws which was accepted by the said Moon and became binding on him at the time he became a member of the defendant order, and is now binding upon the plaintiff and upon all persons claiming under, through or by virtue of the membership of the said John W. Moon in the defendant order; that the alleged injury and disability claimed to have been sustained by the said John W. Moon happened directly or indirectly in consequence of a disease, and was caused solely or in part by bodily infirmities or disease; and that the alleged injuries as claimed to have been sustained by the said John W. Moon, if any such were received by him, were not the proximate, sole and only cause of his death, and that his death was not caused by any external, accidental means. A reply was filed to the second defense March 12, 1912, denying each and every allegation therein contained.
At the trial George Moon testified, on behalf of the plaintiff, that he was 26 years of age and the son of the plaintiff, and the deceased, John W. Moon; that on the day of his death he met his father in a cigar store and pool hall at 1904 Cuming street in Omaha, between 2 and 3 o'clock in the afternoon; that the father bought a cigar, and together the father and the witness started for their home at 1429 North Fourteenth street, which was about four or five blocks north from the cigar store; that it was rainy; that the sidewalks were slippery and the moisture freezing; that the father was wearing a heavy ulster overcoat and was smoking a cigar; that there were steps just inside the gate; that these steps were about 8 inches high, and about 13 or 14 inches wide, made of hard cement; that a brick walk led from the steps up to the front porch about 14 or 15 feet away; that there were two wooden steps up to the porch proper, which was 6 feet wide; that when the witness and his father reached the gate it was closed, and the witness opened it, and the father stepped into the yard first and they started up the steps together; that when the father stepped on the first step his foot slipped and he fell forward, sideways, and hit his side against the top of the stairs, at or near the corner of the step, striking his left side near the heart; that his hands were in his overcoat pockets as they started up the steps that his father said he could not catch himself; that he had an awful hard fall; that he could not protect himself because he had his hands in his pockets; that the witness assisted his father to arise and the father walked into the house himself; that the steps were icy and slippery, the same as the rest of the walks all around. The witness testified that his father was 5 feet and 8 inches high; that he weighed...
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