Nat'l Ben. Ass'n v. Bowman

• Decision Date: 09 April 1887
• Parties: National Ben. Ass'n v. Bowman.
• Court: Indiana Supreme Court

110 Ind. 355

11 N.E. 316

National Ben. Ass'n

v.Bowman.

Supreme Court of Indiana.

April 9, 1887.

Appeal from superior court, Marion county.

Shepard & Martindale, for appellants. C. S. Denny, W. F. Elliott, and O. B. Orton, for appellee.

MITCHELL, J.

On the third day of September, 1881, William Bowman became a member of the National Benefit Association of Indianapolis. His certificate of membership contained a stipulation to the effect that if, during the continuance of membership, he should sustain bodily injuries, effected through external, violent, and accidental means, which should, independently of all other causes, immediately and wholly disable him from the prosecution of any and every kind of business, then, upon satisfactory proof of such injuries, the association agreed to indemnify him against any loss, by paying him $25 per week for such period of continuous total disability as should immediately follow, not exceeding 52 consecutive weeks. In a complaint to recover upon this certificate, the plaintiff alleged that on the tenth day of December, 1881, while pursuing his usual occupation as dairyman, he sustained bodily injuries through external, violent, and accidental means, by being accidentally thrown from his wagon, thereby suffering the dislocation of his shoulder, and the breaking of the bone of his left arm, etc. He alleges that he was totally disabled therefrom for 52 consecutive weeks. The complaint avers, among other things, that notice of the injury had been given according to the requirements of the certificate, and “that the plaintiff had performed all the conditions and terms of such certificate of membership on his part.”

A copy of the certificate was made an exhibit to and filed with the complaint. Among other conditions, it contained the following: “No claim shall be made under this certificate, when the death or injury may have happened in consequence of any voluntary exposure to unnecessary danger, or while engaged in, or in consequence of, any criminal act.” The appellant contends that the complaint does not state facts sufficient, because it does not aver that the injury complained of was not the result of voluntary exposure to unnecessary danger, nor that it was not sustained while engaged in, or in consequence of, any criminal act.

We concur in the view urged by counsel that the certificate upon which the suit is founded is a contract, and that it is essential to a recovery thereon; that the plaintiff must have averred and proved that the injury complained of was sustained within its limits and...