National Masonic Acc. Ass'n v. Shryock, 677.

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: 73 F. 774
• Docket Number: 677.
• Parties: NATIONAL MASONIC ACC. ASS'N of DES MOINES v. SHRYOCK.
• Decision Date: 30 March 1896

73 F. 774

NATIONAL MASONIC ACC. ASS'N of DES MOINES
v.
SHRYOCK.

No. 677.

United States Court of Appeals, Eighth Circuit.

March 30, 1896

The National Masonic Accident Association of Des Moines, Iowa, a corporation, brings this writ of error to reverse a judgment rendered against it, and in favor of Celia V. Shryock, the defendant in error, on a certificate of membership of her husband, William B. Shryock, in that association. In her complaint the defendant in error alleged that on the 14th of November, 1890, this accident association issued to William B. Shryock its certificate of membership, by which it agreed to pay to her such a sum, not exceeding $5,000, as should be realize by it from one quarterly payment of $2, made and collected from all its members at the date of the accident, if the death of William B. Shryock should result through external, violent, and accidental means alone, which should, independently of all other causes, cause his death within 90 days of the date of the accident, but expressly stipulated in the certificate that 'this [73 F. 775] insurance does not cover disappearances, nor injuries of which there is no visible mark upon the body, nor accident, nor death or disability resulting wholly or in part, directly or indirectly, from any of the following causes, or while so engaged or affected: Suicide, intoxication, or narcotics, dueling or fighting, war or riot, voluntary overexertion or exposure to unnecessary danger, intentional injuries (inflicted by the assured, or by any other person with the consent or procurement of the assured), medical or surgical treatment (necessitated solely by injuries, and made within ninety days of the occurrence of accident excepted), sunstroke, violating law or the rules of a corporation, taking poison or inhaling gas, disease or bodily infirmity, hernia, fits, vertigo, or sleep-walking. ' She then averred that on July 2, 1892, Shryock received a personal injury by a violent and accidental fall, and by striking a hard substance, on the street in the city of Omaha, from which he died in a few hours, and that she had complied with the provisions of the certificate on her part. The plaintiff in error filed an answer, in which it admitted its issue of the certificate, denied that Shryock met with any accident which caused his death, within the meaning of the certificate, set forth the stipulation of the certificate which we have quoted, and alleged, as a separate defense, that if Shryock received any bodily injury through external, violent, or accidental means, he was at the time suffering from disease or bodily infirmity, the same being some form of heart disease or other kindred disease, and his death resulted wholly or in part from that disease. The answer contained other allegations, but none that are inconsistent with those that he have recited, and none which attributed the death to any other cause than this disease.

Clark Varnum and Carroll S. Montgomery (Matthew A. Hall, with them on the brief) for plaintiff in error.

A. N. Sullivan, J. C. Cowin, and Mr. McHugh (R. Graham Frost, in behalf of counsel), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the facts as above, .

The certificate of membership in this accident association, on which this action is based, contained the covenant of this corporation to pay to the defendant in error the indemnity it promised in case the death of William B. Shyrock resulted, within 90 day. from the date of any accident, solely because of bodily injuries effected by external, violent, and accidental means, and independently of all other causes; and it also contained an express agreement that the insurance promised thereby should not cover any death which resulted wholly or in part, directly or indirectly, from disease or bodily infirmity. The defendant in error alleged that Shryock's death was caused by an injury to him which resulted from an accidental fall on the street. The association denied this allegation, and alleged that, if he was injured by such a fall, his death was not caused by that alone, but resulted, wholly or in part, from some disease of his heart. The burden of proof was upon the defendant in error to establish the facts that William B. Shryock sustained an accident, and that that accident was the sole cause of his death, independently of all other causes. If Shryock suffered such an accident, and his death was caused by that alone, the association agreed by this certificate to pay the promised indemnity. But if he was affected with a disease or bodily infirmity which caused his death, the association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he [73 F. 776] was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the affects of the disease, or the disease aggravated the effects of the accident, the express contract was that the association should not be liable for the amount of this insurance. The death in such a case would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract exempted the association from liability therefor. These propositions have been so lately discussed and affirmed by this court that we content ourselves with their statement. Insurance Co. v. Melick, 27 U.S.App. 547,12 C.C.A. 544, 547, and 65 F. 178, 181; Association v. Barry, 131 U.S. 100, 111, 112, 9 Sup.Ct. 755; Freeman v. Association, 156 Mass. 351, 353, 30 N.E. 1013; Anderson v. Insurance Co., 27 Scot.L.R. 20, 23; Smith v. Insurance Co., L.R. 5 Exch. 302, 305; Insurance Co. v. Thomas, 12 Ky.Law Rep. 715; Marble v. City of Worcester, 4 Gray, 395, 397; Association v. Grauman, 107 Ind. 288, 290, 7 N.E. 233.

On the trial of the case there was evidence tending to show that about 4 o'clock in the afternoon of July 1, 1892, William B. Shryock, who resided at Louisville, in the state of Nebraska, went from that place by rail to the city of Omaha, in that state, where he arrived about 5 o'clock in the afternoon of that day; that, some months before, he had been injured by the fall of a horse upon him, but had recovered from much of the disability caused by that injury that he was still lame, and wore a rubber supporter on his knee; that he told one of his acquaintances, just before he left Louisville, that he was nervous, and felt badly, that he was going to Omaha, and that he wanted him to keep his grave green if he never saw him again; that after his arrival in Omaha, he met another acquaintance at the Millard Hotel in that city, about 6 o'clock in the evening, and went with him to a harness shop, bought a harness, and accompanied him to the depot; that the baggage master saw him at the depot in Omaha between 7 and 8 o'clock on that evening and noticed that he was lamer than usual, and looked like a man in pain; that about 8 o'clock on that evening he entered the store of one Keefer, in Omaha, and purchased a harness; that he was very lame and pale, and looked as if he was suffering; that about half past 8 on that evening he entered the store of one Darst, in Omaha; that he remained there an hour and a half, and seemed to be weak and in pain; that Darst then accompanied him to his hotel in Omaha, where he obtained from a drug store a phial of some liquid, and retired to his room, where he was found...