The Order of United Commercial Travelers of America v. Barnes

• Decision Date: 09 December 1905
• Docket Number: 14,145
• Citation: 80 P. 1020,72 Kan. 293
• Parties: THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. EZEKIEL BARNES
• Court: Kansas Supreme Court

80 P. 1020

72 Kan. 293

THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. EZEKIEL BARNES

No. 14,145

Supreme Court of Kansas

December 9, 1905

May 6 1905.

Decided July, 1905.

Rehearing allowed June 10, 1905.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge. First opinion filed May 6, 1905. Reversed. Rehearing allowed June 10, 1905. Second

STATEMENT.

ON July 23, 1902, defendant in error was a member in good standing of the Order of United Commercial Travelers of America. One of the objects of the order, as expressed in the by-laws, is "to establish an 'indemnity fund' to indemnify its members for total disability or death resulting from accidental means." Section 8 of the by-laws, which it is agreed is binding on the assured, contains this provision:

"If said member shall sustain bodily injury by means aforesaid which shall, independently of all other causes, immediately, wholly and continuously disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation, he shall, upon furnishing satisfactory proofs of such injuries, be indemnified against loss of time thereby in a sum not exceeding twenty-five dollars for each consecutive week he is thus disabled as shall immediately follow the injuries and accident aforesaid, but not exceeding fifty-two weeks by reason of the same accident, which sum shall be due and payable within sixty days after the receipt of satisfactory proofs, on blanks furnished by the order, at the end of the disability complained of, provided such sum shall not exceed the proceeds of one assessment of not more than two dollars on each member of the order."

It is expressly stated in the same section of this bylaw that the order shall not be liable to pay indemnity for any bodily injury happening directly or indirectly in consequence of disease.

On the evening of July 23, 1902, defendant in error was taken sick at the dinner-table, the illness being immediately followed by vomiting. There were present at the time his wife and little girl, and Mrs. Nathaniel Barnes, his sister-in-law. Defendant in error was not confined to his bed until August 4, and about that time called a physician. He suffered much pain from that time. On October 1, 1902, Doctor Stemen, who had attended him for the first time three days before, discovered a metal pin in the vomit of his patient, which he had emitted from his stomach. It was encased in a mucous or serous membrane, which the doctor estimated would take three or four months to form. After emitting the pin defendant in error improved in health. He made a claim on defendant below for indemnity at the rate of twenty-five dollars a week for the time of his disability. The relevant parts of the formal, verified statement of his claim, made to the order, read:

"(6) Give name and address of attending physician. Ans. Dr. C. M. Stemen.

"(7) When did you first consult a physician? (Give date.) A. About August 1, 1902.

"(8) How long were you wholly disabled, in consequence of said injury, from the prosecution of any and every part of your business? (Give the length of time and between what dates.) A. From August 4, 1902, to March 21, 1903, 230 days; am still unable to attend to business.

"(9) How long were you actually confined to the house? A. From August 4, 1902, to November 6, 1902."

A refusal of plaintiff in error to pay was followed by an action against it for $ 1300 and interest. Plaintiff below did not testify in his own behalf at the trial. Two witnesses testified respecting his physical condition between July 23, 1902, when he was first taken sick, and August 4, when he took to his bed. Nathaniel Barnes, a brother of the plaintiff, testified that until June 17, 1902, plaintiff had been in charge of the city business for Long Brothers, wholesale grocers in Kansas City, eighteen years. He was one of a number of persons who, in the same month, organized a wholesale grocery house known as the Kansas City Wholesale Grocery Company. He was one of the stockholders. The exact answers of the witness given on cross-examination follow:

"Ques. You don't recall his being sick at any time prior to August 4, 1902, within one year back? Ans. I don't know of any sickness.

"Q. You don't know of any? A. No, sir; not of any consequence.

"Q. While Mr. Barnes was in health was it your habit and custom to see him every day and every week? A. Pretty near it--not every day.

"Q. Would there sometimes weeks elapse without your seeing him? A. Hardly, that I would not hear or know something about him.

"Q. I say, would there be a week elapse without your seeing him? A. Not if he was in the city--hardly.

"Q. You don't remember of any sickness within a year prior to August 4, 1902, during which Mr. Barnes suffered from diarrhea and vomiting? A. Not that I know of, sir. . . .

"Q. You don't know of any? A. I don't know of any sickness--any special sickness.

"Q. You say that he complained to you of not feeling well? A. Yes, sir.

"Q. When was that? A. Well, that was after he left Long Brothers and they had completed this organization. They were purchasing the stock.

"Q. Buying goods? A. Yes, sir; and he was looking the stock over.

"Q. Well, when did he leave Long Brothers? A. Well, I think it was about the 17th of June, 1902.

"Q. How long after that was it that he complained to you of feeling sick? A. Well, he came over to my store every day or two, and he said he was not very well; and then on Sunday--they were to open the new house on the 4th of the month--the 4th of August--then is when he complained. (Mr. Berger: "I desire to strike that out as not proper cross-examination, incompetent, irrelevant, and immaterial; this is prior to the time of August 4." [No ruling.] Mr. Rosenberger: "Do you contend that he was not sick before August 4?" Mr. Berger: "Why, I don't know anything about it, and I care less." Mr. Rosenberger: "Well, I care a good deal. If it is conceded that he was not sick before August 4, 1902, let that concession go into the record." Mr. Berger: "Well, if you have a defense to make, make it. Don't try to make your defense from me. . . . We move to strike out all the answer of the witness to any question pertaining to any--" The court: "Well, it may stand. Proceed.")

"Q. You say he left Long Brothers June 17? A. That is about the date, I think.

"Q. When, in reference to that date, did Mr. Barnes first complain to you of feeling sick? A. Well, it was probably a week or so. Immediately after he left Long Brothers he was very well, able to make all contracts and the deals, and help frame the organization and the business, and about a week or ten days before he took down, why, he complained; he complained each day, and I did not want him to go over and interest himself. I wanted him to take a rest, and on Sunday--they were to open on the 4th, and my wife and I visited them--

"Q. Did he go over nevertheless and assist in buying goods? A. Yes, sir. I think he went over nearly every day. (Mr. Berger: "Now, we would like to have that time confined.")

"Q. He has confined it. He said it was within ten days before August 4. Did you not? A. Something like that. It may have been a little longer.

"Q. You say he did go over every day? A. I think he managed to drive over and back.

"Q. Do you know whether or not he was over there at the store familiarizing himself with the stock of this new concern? A. That would be the object of his--" (Mr. Berger: "Now, wait a minute. Do you know of your own knowledge?") A. Yes, I have saw him in the broker's office.

"Q. What would he be doing there--attending to business? A. No, he was simply looking over their purchases.

"Q. Whose purchases? A. The purchases of the wholesale grocery company.

"Q. When was it that you saw him there? A. Well, it was previous to their opening--probably eight or ten or fifteen days, somewhere along there. I was down there a couple of times, and their men were all there.

"Q. It was eight, ten or fifteen days prior to the new firm's opening? A. Yes, sir.

"Q. And that was on August 4, 1902? A. Yes, sir.

"Q. At that time this new firm was not in a position yet to sell any goods, was it? A. Yes, sir; he was selling some goods too.

"Q. During that time? A. Yes, sir; he was selling futures.

"Q. That is, future orders? A. Yes, sir."

Mrs. Barnes, wife of the preceding witness, who was present on July 23, when plaintiff was taken sick, testified:

"He was not well a day after that. Did not look well from that on, was complaining--was sick from that on--not taken to his bed for some time after that, on August 4. No personal knowledge that he attended to business. I think he did transact some business between July 23 and August 4--while he was sick, too, all the time. I saw him at church on August 3, at Sunday-school. He left because he was sick. I don't remember seeing Mr. Barnes between July 23 and August 3."

On behalf of defendant below a Mr. Bucher, who was in the employ of the Kansas City Wholesale Grocery Company, testified that that concern began business on August 4, 1902; that for a space of five or six weeks prior to that time Mr. Barnes was assisting in starting the business; that on the Saturday prior to August 4 he was at the office of the company familiarizing himself with the goods it was buying; that he participated to the same extent as the others; that for two or three days he was not at the store on account of being a little sick, or "under the weather"--this was a short time before August 4; that he went to the office after this period of sickness, and on the Saturday before August 4 took dinner with the witness and others at a restaurant, and that he was attending to his usual duties, which were not hard.

The court...