Riley v. Interstate Bus. Men's Acc. Ass'n

• Decision Date: 23 September 1916
• Docket Number: No. 30028.,30028.
• Citation: 177 Iowa 449,159 N.W. 203
• Parties: RILEY v. INTERSTATE BUSINESS MEN'S ACC. ASS'N.
• Court: Iowa Supreme Court

177 Iowa 449

159 N.W. 203

RILEY

v.INTERSTATE BUSINESS MEN'S ACC. ASS'N.

No. 30028.

Supreme Court of Iowa.

Sept. 23, 1916.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Demurrer to plaintiff's petition sustained. She appeals. On rehearing, superseding 152 N. W. 617.Tourtellot & Donnelly, of Cedar Rapids, and Edwards, Longley & Ransier, of Waterloo, for appellant.

Dunshee & Haines, of Des Moines, for appellee.

SALINGER, J.

[1][2] I. Section 3626 of the Code of 1897 provides that in pleading the performance of conditions precedent in a contract, it is not necessary to state the facts constituting such performance, but the party may state generally that he duly performed all the conditions on his part. It seems to be contemplated that under this statute the answer of the defendant is to set out its articles of incorporation. Krause v. Modern Woodmen, 133 Iowa, at page 203, 110 N. W. 452. In Clark v. Riddle, 101 Iowa, 270, 70 N. W. 207, there is involved an injunction to restrain illegal sale of intoxicating liquors. It is conceded, of course, that the sale of liquor of itself proves an illegal sale, and that, therefore, it is upon the defendant to set up the bar of what is known as the mulct law. It is said that a general allegation that whatsoever business was carried on under and by virtue of the provisions and privileges of that law (citing the statute), is probably sufficient because said section of the statute authorizes the performance of conditions precedent to be stated generally. In Brock v. Des Moines Insurance Co., 96 Iowa, 39, 64 N. W. 685, this statute was applied to pleading that proof of loss required had been made. In the same case it is held that the statute can be waived, and that where the facts constituting proof of loss are stated, a general denial puts the making of the proof in issue, and there will be a failure of proof if the facts stated do not constitute sufficient proof of loss. It would seem, therefore, that plaintiff was under no requirement to plead more than that her decedent had a described certificate, generally, that he had met his death in a manner covered by the certificate, and that all conditions thereof had been complied with. But plaintiff chose to do more. While, therefore, the statute does not aid her, and she must take the consequences of her volunteer pleading, that consequence is on demurrer no more than that the volunteer matter is an admission. If what is thus admitted avoids a recovery, demurrer will defeat her. It follows that the demurrer is not good merely because the case stated is not enough to recover on, but can be effective only if that be affirmatively admitted which defeats the action. The sole question we have on this record is whether there are such affirmative admissions.

[3][4][5] (2) A copy of the application is attached to the petition as Exhibit A, and made part thereof, and a copy of the certificate of membership issued on the application, and a synopsis of the articles of incorporation and by-laws, are attached as Exhibit C. One provision of Exhibit C is that the defendant will pay for a death which results within six months after injury, and which results “from bodily injuries effected solely by external, violent, and accidental means, and without intervening cause.” Another provision is that there is to be no liability for death “resulting from the voluntary or involuntary taking of poison.” Another, that the death must result within six months after injury, and result solely from bodily injuries effected solely by external, violent, and accidental means, and without intervening cause. Another, that there is no liability if the occasion of the accident be bodily infirmity. Still another, that there shall be no liability if the occasion of the accident be medical or surgical treatment. In addition to the matters set out by way of exhibits to the petition, the petition itself avers:

“That said poison was accidentally taken, was neither voluntarily or involuntarily taken by him, but was the result of an accident as provided for in said certificate and the articles of incorporation and by-laws aforesaid.”

(3) The demurrer which was sustained asserts that the petition shows on its face that the death was not caused by accidental means; was caused by a voluntary or involuntary taking of poison; or by an accident resulting from bodily infirmity; or by an accident resulting from medical treatment. It asserts the petition shows the death was caused by taking of poison, to wit, a drug administered by the physician of decedent, and taken voluntarily, or involuntarily, and that, therefore, the death was not produced by accidental means; asserts the petition shows that for some time before his death deceased was suffering from disease or bodily infirmity, and for that reason sought medical aid and took the drug, wherefore, it shows on its face that the accident was occasioned by disease or bodily infirmity; asserts it shows on its face death was produced by a drug given after consultation with reference to a sickness or bodily infirmity and seeking medical treatment--wherefore it shows on its face the accident was caused by medical treatment. Does the petition show this, on its face?

II. The words that single out the voluntary or involuntary taking of poison were put into the contract by the defendant, and it must be assumed they were intended to be effective, and state the exemptions of defendant to the uttermost extent intended. Therefore, they cannot mean that the naked fact of death by poison absolves from liability. It must have been intended there could be some deaths from poison for which defendant is liable. Had it been the intention that the mere fact that death was due to poison defeated recovery, a statement that the defendant was not liable if death so resulted would...