Prader v. Nat'l Masonic Accident Ass'n

• Citation: 63 N.W. 601,95 Iowa 149
• Parties: PRADER v. NATIONAL MASONIC ACCIDENT ASS'N.
• Decision Date: 28 May 1895
• Court: United States State Supreme Court of Iowa

95 Iowa 149

63 N.W. 601

PRADER

v.NATIONAL MASONIC ACCIDENT ASS'N.

Supreme Court of Iowa.

May 28, 1895.

Appeal from district court, Jones county; J. H. Preston, Judge.

Action in equity to recover on a certificate of membership, and to compel the levying and collection of an assessment for the payment of the amount claimed to be due. There was a hearing on the merits, and a decree for the plaintiff. The defendant appeals. Modified.Varnum & Anderson and Clark Varnum, for appellant.

J. W. Doxsee and Jamison & Burr, for appellee.

ROBINSON, J.

The defendant is a corporation duly organized under the laws of this state. In December, 1889, it issued to Christian M. Prader a certificate of membership, by which the defendant agreed to pay $25 each week, for a period not exceeding 52 consecutive weeks, as indemnity for loss of time resulting from bodily injury effected during the life of the certificate, through external, violent, and accidental means, which should, independently of all other causes, immediately, wholly, and continuously disable him from transacting his business. The certificate further required the defendant to pay to the wife and child of Christian M. Prader, in case he should die from the effects of the injuries against which the certificate provided, within 90 days of the time of receiving them, the sum of $5,000. But the agreements stated were on the conditions that the defendant should not be liable for a greater sum than should be realized from one assessment of $2 made upon and collected from all its members assessable on the date on which the injury should be received. On the 30th day of October, 1892, Prader met with an accident by which one of his legs was broken, and which, it is claimed, caused his death on the 8th day of the next month. This action is brought by his widow, in her own right and as guardian of her minor child, Rudolph Prader, to recover indemnity for the loss of the decedent, and $5,000 for his death, and to compel the defendant to levy and collect an assessment to pay the amount claimed to be due. The district court adjudged that the plaintiff was entitled to recover, fixed the amount at $5,025, and ordered that the defendant and its officers make and collect an assessment of $2 on each of its members, and that the proceeds of the assessment, not exceeding the amount stated, be paid to the plaintiff.

1. Before filing its answer, the defendant appeared and filed an application for a change of the place of trial to Polk county, on the ground that it was a mutual benefit association organized upon the mutual assessment or co-operative plan, for the purpose of paying benefits to its members for accidents occuring to such members, and to no other persons, by means of assessments levied on its members; that it is not an insurance company, and does not do an insurance business; that it was incorporated, and its principal place of business is in Polk county; that it has not and never has had an office or agency in Jones county, and that the original notice was served on it in Polk county. Resistance to the motion was filed, which claimed that the defendant was an insurance company, and which showed that it had an agent in Jones county, who was authorized to transact business for it. The motion was overruled, and of that ruling the defendant complains. Section 2584 of the Code is as follows: “Insurance companies may be sued in any county in which is kept their principal place of business, in which was made the contract of insurance, or in which the loss insured against occurred.” This clearly authorizes an action against an insurance company to be brought in the county in which the loss occurred, even though the principal place of business of the company is in another county of the state. Hunt v. Insurance Co., 67 Iowa, 742, 24 N. W. 745;Insurance Co. v. Granger, 62 Iowa, 272, 17 N. W. 504. But it is said that the defendant is not an insurance company, within the meaning of the section quoted, and that, as its principal place of business was in Des Moines, it was entitled to have the case tried in Polk county. “Insurance” is defined to be “a contract whereby one party agrees to indemnify another in case he shall suffer loss in respect of a specified subject by a specified peril.” See 11 Am. & Eng. Enc. Law, 280, note. The fact that the contract may be subject to a condition will not affect its character. Most contracts of insurance are founded upon conditions. It is said that the case of State v. Iowa Mut. Aid Ass'n, 59 Iowa, 125, 12 N. W. 782, and chapter 65 of the acts of the Twenty First General Assembly, authorize the conclusion that mutual benefit associations are something other than and different from insurance companies. The case and statute referred to show that such associations are governed by laws made especially applicable to them, and not to the general insurance laws of the state regulating life insurance. But they do not show that the associationsare not insurance companies. The object of the defendant, as stated in its articles of incorporation, is “to furnish its members the advantages of accident insurance.” Its by-laws require that “each and every member shall pay for his insurance in equal amounts.” The application for membership, signed by Prader, stated the “insurance, in case of accidental death, to be $5,000.” The certificate on which this action is founded refers to Prader as “the assured,” and “the insured,” and provides that the “insurance does not cover” certain specified cases. It is quite clear that the theory that the defendant is not engaged in doing an insurance business was not entertained when the contract in question was made, and it has no support in the statutes of this state. We conclude that the defendant is an insurance company, within the meaning of section 2584 of the Code, and that the motion for the removal of the cause to Polk county was properly overruled. See Matt v. Association, 81 Iowa, 135, 46 N. W. 857.

2. The application of Prader for membership in the defendant contains the following: “I agree that this certificate shall not cover any injury happening through or while under the influence of intoxicating drinks or narcotics.” A provision of the certificate issued is as follows: “This insurance does not cover * * * 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: * * * Intoxication or narcotics.” The appellant contends that Prader was under the influence of intoxicating liquor when the accident in question happened; that his death was due to the excessive use of such liquor; and that, therefore, it is not liable on account of his death. The evidence discloses the following facts: The deceased was a hard ware merchant engaged in business in Monticello. In the morning of October 30, 1892, he left the town with his son Rudolph, then about 18 years of age, and a companion named Smith. The party were in a one-horse delivery wagon, and had with them three guns, ammunition, a quart bottle of whisky, and food for a luncheon. The reason given by Prader for making the trip was that he wished to purchase some wood. After driving a few miles, he spoke to a man about wood. After that the party drove about two miles further, and stopped in the woods, seven or eight miles northwest of Monticello, for the purpose of hunting. The testimony of Rudolph and Smith with respect to what occurred in the woods is not in all respects the same, but it appears from what they state that between 11 and 12 o'clock in the forenoon they returned to the wagon, and found Prader lying in it. Rudolph states that his father said he had slipped into a hole, and hurt one of his legs, but Smith says nothing in regard to such a statement. Luncheon was eaten, and Rudolph and Smith left the wagon, and continued to hunt till about 4 o'clock in the afternoon, when they again returned to the wagon, and again found Prader in it. They harnessed the horse, and drove about two and one-half miles towards Monticello, stopping at the house of a man named Brenneman. They remained there for some time, and, as they were leaving, in walking from the house to the wagon, Prader stepped into a hole, and fell to the ground, dislocating his right ankle, and fracturing the right tibia. He was assisted into the wagon, and driven home. The next day a physician was called, who set the broken bone, replaced the dislocated one, and continued to treat Prader, until the 8th day of November, when he died. The evidence in regard to the use of intoxicating liquors by the deceased on the day of the injury is substantially as follows: The plaintiff states that he “appeared to be all right when he left the house” in the morning. Rudolph states that the whisky they had was taken by himself and Smith; that his father did not drink any of it, and that some of it remained when they reached home. He also states that his father drank at least one glass of wine at Brenneman's. Smith testified that all three drank of the whisky, Prader drinking only a small quantity; that about one-third of it was gone when they started for home; that Prader drank wine at Brenneman's, but that it was his opinion that Prader was sober when the accident occurred at Brenneman's. Brenneman testified that, in the afternoon of the day of the accident, Prader, his son, and Smith, came to his house, and Prader asked him for something to drink; that he treated them to new wine made from alder berries and grapes, and weakened with water; that Prader drank of it twice, each time the contents of a small wine glass, and that he did not seem to be intoxicated. Brenneman also testifies that he drank “a good many glasses” before Prader came that day, but that it did not affect him. Mrs. Brenneman states that the wine had just been made from grapes and alder berries; that Prader did not show that it affected him, and...