Order of United Commercial Travelers of America v. Smith

• Decision Date: 27 July 1911
• Docket Number: 1,733.
• Parties: ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. SMITH.
• Court: U.S. Court of Appeals — Seventh Circuit

192 F. 102

ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. SMITH.

No. 1,733.

United States Court of Appeals, Seventh Circuit.

July 27, 1911

Jones &amp Schubring, Lowry F. Sater, and Vorys, Sater, Seymour & Pease for plaintiff in error.

John M Olin and Harry L. Butler, for defendant in error.

Before GROSSCUP, BAKER and SEAMAN, Circuit Judges.

BAKER Circuit Judge.

Defendant in error was named as beneficiary in an application made in 1896 by her husband, L. A. Smith, for membership in the fraternal and benevolent order, plaintiff in error.

In 1908 Smith died of entero-colitis, inflammation of the small intestine and the colon. At the trial the beneficiary introduced evidence, which her counsel insist was sufficient to support a conclusion of fact, and which counsel for the order earnestly contend was only a suggestion for a conjecture, that Smith about 36 hours before he was taken ill ate oysters that were infected with the spores of bacteria; that the spores became bacteria in Smith's alimentary tract; that the bacteria working on nitrogenous food generated ptomaine poison; that the ptomaine poison by irritating and inflaming the intestines produced the disease; that the disease caused the death; and that the death, therefore, was 'effected through external, violent, and accidental means' within the meaning of the laws of the order applicable to this case. Some six months before Smith's death the order amended its laws so as to define more clearly what cases of alleged 'accidents' were within, and what without, the benefits of the common fund. If these amendments are found to be determinative of this case, it is needless to inquire into the sufficiency of the evidence to establish the aforesaid series of causes or the liability of the order under its former laws.

Organized as a fraternal union to provide social enjoyments and also pecuniary benefits in cases of injury or death from 'accidental means,' the order required an applicant to undergo an initiation, and thereupon issued to him a certificate of membership entitling him 'to all rights and privileges of membership accruing to him under the constitution,' and recommending him 'to the fraternal courtesy of the brotherhood wheresoever dispersed.'

Government of the order was representative, and the legislative power was vested in the 'Supreme Council.' Sections of the constitution (the law of the order) provided how amendments should be presented and voted upon. No contention is made that the amendments were not duly and regularly adopted.

When Smith joined the order, the constitution provided that payment of indemnity for injuries through 'external, violent, and accidental means' should not extend 'to any bodily injury of which there shall be no external and visible sign,' and to other named cases not material here. By the amendments the definition of 'external, violent, and accidental means' was further particularized so as to exclude 'any death, disability or loss, resulting from infection, excepting where the same results from an open wound,' and 'any death, disability or loss, of which there shall be no external and visible mark on the body (the dead body not being such a mark except in case of drowning or asphyxiation).'

By competent testimony and proffered instructions, plaintiff in error duly presented to the court for submission to the jury the issue of no liability because Smith's death resulted from an infection that did not come from an open wound. For the 'external and visible sign' of injury through 'external, violent, and accidental means' the evidence showed only chills, fever, pallor, weakness, facial expressions of pain, bloody stools, and tenderness and...