Roeh v. Business Men's Protective Ass'n of Des Moines
| Decision Date | 19 February 1914 |
| Parties | SADIE ROEH, Administratrix of the Estate of Albert Roeh, Appellee, v. BUSINESS MEN'S PROTECTIVE ASSOCIATION of Des Moines, Iowa Appellant |
| Court | Iowa Supreme Court |
Appeal from Jackson District Court.--HON. M. F. DONEGAN, Judge.
ACTION upon a benefit certificate in the defendant association. The defendant denied liability upon grounds which will be referred to in the body of the opinion. The case was tried to the court without a jury, resulting in a judgment for plaintiff for the amount of the certificate, with interest and defendant appeals.
Reversed.
Dunshee & Haines, for appellant.
Charles M. Thomas and G. E. Hilsinger, for appellee.
OPINION
The defendant is a mutual assessment accident association incorporated under chapter 7 and 8 of title 9 of the Code of Iowa. As such, on the 21st day of March, 1912, it received an application from one Albert Roeh for membership in the association. The application contained a statement that the insured would accept the certificate issued by the association "subject to all the conditions, provisions and limitations contained in defendant's articles and by-laws." The application was accepted, and a certificate was issued to and accepted by the insured on March 30, 1912. It provided certain indemnities in case of injury or death resulting from accident. No beneficiary is designated, but the articles provided that the indemnity should be paid to a surviving wife or heir of the member. On July 26, 1912, the insured came to his death as a result of the discharge of a rifle; whether the discharge was accidental or with suicidal intent does not clearly appear. This action was commenced by the administratrix of his estate to recover the benefits and indemnity of $ 1,000, in case of death by accidental means. Defendant introduced many defenses, and the case was tried on a stipulation of facts, supplemented by certain oral testimony.
Among other things it was stipulated in the certificate of membership that:
The articles of incorporation and by-laws may be changed by amendments legally adopted, and the rights of the member to claim benefits or indemnity shall be determined by the provisions of the articles and by-laws in force at the time a claim arises. Acceptance. I hereby accept this certificate of membership subject to all the provisions, conditions and limitations of the articles of incorporation and by-laws, and agree that both myself and my beneficiary shall be bound by future amendments legally adopted; and also subject to the terms and conditions hereinbefore set out, and I agree that the articles of incorporation, by-laws, my application and this certificate shall jointly constitute the contract between myself, my beneficiary and the association.
The articles of incorporation provided that:
The association shall pay to the beneficiary designated in writing by any member of the accident department, who must be either the surviving wife or an heir of such member, the proceeds of one full assessment on each member of the accident department in good standing at the time of the accident, to an amount not exceeding the sum specified in his certificate for indemnity on account of the death of any member of the accident department occurring within ninety days from the happening of the accident and resulting directly and without intervening cause from a bodily injury sustained by the member while in good standing and effected solely by external, violent and accidental means, subject only to the conditions, provisions and limitations of the by-laws.
Article 5, Section 14. The right of any member or person claiming by, through and under any certificate issued to any member to claim weekly benefits or indemnity from the association, shall be fixed and established by the provisions of the articles of incorporation and of the by-laws in force at the time the accident occurred or sickness commenced out of which any claim arises.
And the by-laws had these, among other provisions:
Article 1, Section 3. The contract between the association and its members shall consist of the articles of incorporation and by-laws and the application and the certificate of membership.
Article 4, Section 5. This association shall not be liable for the payment of benefits or indemnity on account of disability or death resulting from a bodily injury caused by the discharge of firearms unless the member or person claiming by, through or under any certificate issued to such member shall establish the accidental character of such discharge by the testimony of at least one person other than the member who was an eye-witness of the event.
The only oral testimony as to the manner of death, we here quote:
Plaintiff testified:
I had some talk with my husband about noon on the day of his death over the telephone. He wanted to know what kind of meat I wanted for dinner, and said he would be down in a short time. That was somewhere between 12:30 and 1 o'clock. I heard of his death about 1:30 the same day.
Another witness said:
I saw the body of Mr. Roeh on the 26th day of July, 1912, after he was dead. I was called in there by Mr. Anderson. I found the body in the revolving chair with his head against the wall and his rifle at his left side on the floor. The ramrod was across his knees, and his legs were crossed. His right hand was hanging down, and his left hand was on his lap. The ramrod was an ordinary ramrod, about three feet long, with a crook on the end of it, and on the other end of it there was a rag for cleaning the gun. The rag was a little black from the powder from the gun. The rifle was a thirty-two magazine Winchester; the trigger being guarded by the lever which works up and down. The rifle was usually kept in the shop right at the desk where he was sitting. It was used for killing cattle; Roeh being in the butcher business. I do not remember how many days it was prior to this occurrence that they had killed cattle. I think it was two days, and that the supply of meat was low. I know Roeh had some cattle ready for killing out at a farmer's. I do not know whether he had any arrangements for killing them on that day. It was in the neighborhood of 1 o'clock when I saw the body in the chair. (Cross-examination.) Mr. Roeh was dead when I arrived. I did not hear the report of the rifle. I was called in there. (Redirect examination.) I did not know that Roeh was dead until after the doctor had been there. That was about ten minutes after I first saw him. I did not examine him to see if he was dead.
And another gave the following testimony:
I was working for Mr. Roeh in the butcher shop the day he was killed. I had a talk with Mr. Roeh about 12 o'clock on that day. He picked up the rifle and said: 'I don't believe this rifle has been cleaned out for ten years; it is so dirty.' Then he told me to get my dinner and come back to the barn and get the horses and wagon, and get back as early as possible, as we had a big afternoon's work ahead of us. I left the shop right at 12 o'clock or close to it, and it was about 1 when I got back. When I got back I stood on the sidewalk holding the team and hollered two or three times for him to come out. When he did not come, I tied the horses and went through the shop. I called as I went in, but got no answer. I glanced into the office and saw him in the chair. He was sitting in the revolving chair with his head back against the partition. I did not stop to look further, but ran out and called Mr. Goose and Mr. Peterson. (Cross-examination:) I think Mr. Roeh was dead when I first saw him. I did not hear the rifle shot. I was not present when the shooting took place. Nobody else was present that I know of or ever heard of. Our town is about 1,200 population, and I never have heard that anybody was there. Nobody ever heard the shot. Nobody saw or heard the shooting.
And the last and only other witness said:
I am the person who was called by Mr. Anderson the day on which Roeh was killed. When I got in, I found the body sitting in the revolving chair with the head leaning back against the wall, the rifle to his left side, his legs crossed, and the ramrod across his right foot. The muzzle of the gun was pointing south. He was sitting facing north. The ramrod had a rag on it, and it appeared to be a little black from running through the gun. That is all I know. (Cross...
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