Rommel v. Nat'l Travelers' Benefit Ass'n

• Decision Date: 16 February 1918
• Docket Number: No. 31917.,31917.
• Citation: 166 N.W. 455,183 Iowa 776
• Parties: ROMMEL v. NATIONAL TRAVELERS' BENEFIT ASS'N.
• Court: Iowa Supreme Court

183 Iowa 776

166 N.W. 455

ROMMEL

v.NATIONAL TRAVELERS' BENEFIT ASS'N.

No. 31917.

Supreme Court of Iowa.

Feb. 16, 1918.

Appeal from District Court, Mahaska County; Henry Silwold, Judge.

Action upon a policy of insurance for $5,000 death benefits. The court directed the jury to return a verdict in favor of the plaintiff for $100. Plaintiff appeals. The facts are fully stated in the opinion. Affirmed.Thomas J. Bray, of Oskaloosa, and J. G. Shifflett, of Grinnell, for appellant.

Burrell & Devitt, of Oskaloosa, and Carr, Carr & Evans, of Des Moines, for appellee.

STEVENS, J.

Arthur E. Rommel at the time of his death, which occurred on the 26th day of February, 1916, by drowning, held a certificate of membership in the National Travelers' Benefit Association of Des Moines, Iowa, by the terms of which the association agreed in case of death by accident to pay Stella B. Rommel, his wife and plaintiff herein, the sum of $5,000. The policy, however, provided:

“This policy shall not cover * * * injuries occasioned by * * * exposure to obvious risk * * * to an amount exceeding $100.”

The circumstances surrounding his death are, in substance, as follows:

Mr. Rommel was county engineer of Mahaska county, and, an ice gorge having formed in the Des Moines river near Oskaloosa, causing the channel to become obstructed, and the flood waters to flow over the adjacent bottom land, he, with some companions, attempted to destroy the gorge by the use of dynamite. The river is described by some of the witnesses as having two channels, one a quarter of a mile in width, and another between a knoll or elevation of land referred to in the evidence as an island and ice gorge beyond. The latter channel was about 130 to 200 feet in width, but the distance from the island to the gorge, the way deceased and Thomas went was about 300 feet.

On the day in question deceased, with Mr. Ruggenberg, Mr. Reynolds, and Mr. Thomas as companions, rowed across the first channel to the island in two small boats, but only Rommel and Thomas attempted to cross the channel from the island to the ice gorge. They appear to have crossed the first channel to the island without serious difficulty. The witnesses described the channel between the island and the gorge as containing many trees and shrubs and the water as flowing very swiftly. This is also indicated by the difficulty encountered by Thomas and the deceased in launching the boat for the trip. The other two men assisted them in getting into it and an oar placed in the water by Thomas for the purpose of holding the boat was immediately carried to the surface by the swiftness of the stream. In crossing this channel they abandoned their oars and propelled the boat by taking hold of trees and forcing it with their feet. The same method was pursued in attempting to return to the island, but when deceased took hold of a tree, one end of the boat tipped and passed from under him. His companion, who testified that the water was not very swift at the point where this occurred, adjusted the boat, enabling Rommel to get into it, and they proceeded on their way toward the island. Deceased again took hold of a tree, causing one end of the boat to settle and again pass out from under him. Thomas then grabbed the same tree and the boat passed from under them beyond their reach. Thomas, apparently, had a secure hold on the tree, while deceased, for a time, held onto Thomas, the latter assisting him by holding onto his coat collar.

Ruggenberg and Reynolds, who remained on the island, observing their peril, went to the opposite side of the island for the other boat, which they dragged to the channel between the island and the gorge, but on account of the swiftness of the water were unable to launch the same or render any assistance to the parties. In the meantime, Rommel had loosed his hold upon Thomas and drifted down stream to a point where his body was later found. Several hours later a young man, who was an experienced boatman, rescued Thomas from the tree, and took him to the island, where the parties remained until the following morning when they returned to shore from which they started the day before. The young man who rescued Thomas brought with him some ropes, one of which he attached to the boat, and the same was held by the men on the island while he crossed the channel to a point near where Thomas was and threw a trot-line attached to a rope to him, who tied the end of the rope to the tree, and by the use thereof reached the boat. In returning, the oars were not used, and the party in charge of the boat pulled it ashore by holding to the rope, one end of which was fastened on the shore, and the other to the tree from which Thomas had been rescued. Reynolds and Ruggenberg both declined to cross the channel from the island to the gorge, evidently on account of the dangerous appearance thereof, and there was some evidence that Mr. Rommel stated before going to the river that it was a useless and dangerous undertaking to attempt to destroy the gorge by the use of dynamite, and one witness testified that he cautioned him against going on account of the hazard involved.

It is contended by counsel for appellant: (a) That deceased was at the time he was drowned engaged in the performance of his duties as county engineer, and that whatever risk was involved therein was incident thereto; (b) that the case presented a question of fact for the jury, and that the court erred in directing a verdict in favor of the plaintiff for $100.

[1] Appellee for defense relies upon the provision of the policy above quoted. The evidence is conflicting as to some minor details, but not as to the more important facts involved. While the county engineer performs his duties under the direction of the board of supervisors, they are,...