Me v. Chi., B. & Q. R. Co.

• Decision Date: 08 April 1897
• Citation: 109 Iowa 260,70 N.W. 630
• Parties: MAINE v. CHICAGO, B. & Q. R. CO.
• Court: Iowa Supreme Court

109 Iowa 260

70 N.W. 630

MAINE

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Iowa.

April 8, 1897.

Appeal from district court, Union county; W. H. Tedford, Judge.

Action at law to recover for injuries alleged to have been caused by negligence on the part of the defendant. Various pleadings and motions were filed, and proceedings thereon had which resulted in a judgment for the defendant. The plaintiff appeals. Affirmed.Temple & Hardinger, for appellant.

Smith McPherson and Sullivan & Sullivan, for appellee.

ROBINSON, J.

In May, 1892, the plaintiff was in the service of the defendant as flagman and rear brakeman on one of its passenger trains. While in the line of his duty, he was injured by a collision of his train with another, which was going in an opposite direction on the same track. He alleges that the accident occurred by reason of the negligence of an employé of the defendant in failing to give to the conductor and engineer in charge of the plaintiff's train a telegraphic order to hold that train at Red Oak until the train which was met should arrive there. The plaintiff further alleges that the injuries which he received in the collision are permanent, and he asks judgment on account of them for the sum of $1,999.99. The district court rendered judgment against him for costs. The answer of the defendant contained a general denial, and alleged that, prior to and at the time of the accident, the plaintiff was a member of an association organized by the defendant and its employés, which was a department of the defendant, known as the “Burlington Voluntary Relief Department,” and, by reason of his membership, was entitled to certain benefits in the way of support and maintenance while injured or sick during his employment in the service of the defendant, and, in case he should die while in that employment, his wife would become entitled to a benefit; that, in the rules and regulations adopted by the defendant and its employés for the management of the relief department, the defendant guarantied the expenses necessary to conduct it, and paid all the expenses of its management, and furnished a large portion of the funds necessary for the payment of dues and benefits on account of the sickness, injury, and death of the employés as members of the association; that, in becoming a member of the association, the plaintiff contracted with it and the defendant to release the defendant from all liability on account of any accident when he or his beneficiary should accept the benefits due by reason of the accident on account of his membership; that, shortly after the injuries complained of were received, the plaintiff made application to the relief department for the sum of $39, which was due him as benefits under his contract, and that the sums to which he became entitled have been tendered to and accepted by him in settlement of the injuries for which he now asks to recover; that at and before that time the funds of the relief department were insufficient to meet the demands against them, and the defendant furnished the money required for such demands, including that paid to the plaintiff; and that, in consequence of such payments and their acceptance by the plaintiff, he has released all claims against the defendant for the injuries in question. The answer of the defendant further alleges that, by the terms of the contract of the plaintiff with the relief department, he had an election, after receiving the injuries, to accept the benefits provided for by the contract, or to waive them, and claim damages aside from the contract, but that he could not do both, and that, by reason of his acceptance of the benefits as stated, he is estopped to recover in this action. To that answer the plaintiff filed an amended and substituted reply, and afterwards an amendment to his petition, and still later an amendment to his last reply. A motion to strike the amended and substituted reply from the files, a demurrer to the second division to the amendment to the reply, and a demurrer to the amendment to the petition, were filed by the defendant, and sustained. The plaintiff withdrew the first division of the amendment to his reply, and refused to plead further. Judgment was then rendered in favor of the defendant, as stated.

1. The appellant has devoted a large portion of his argument to a consideration of his contract with the relief association, and insists with much earnestness that it provides for insurance; that it is contrary to public policy, and is illegal and void. Substantially all of the objections thus made were considered by us in the recent case of Donald v. Railway Co. (Iowa) 61 N. W. 971, and held not to be well founded. We are content with the conclusions there announced, and do not deem it necessary to review them. As tending to further sustain them, however, we cite Railroad Co. v. Bell (Neb.) 62 N. W. 314, and Elliott, R. R. § 1379 et seq.

2. The appellant contends that the defendant exceeded its powers when it attempted to become a party to the relief association; that its character does not authorize it to engage in the business of insurance, nor in charitable or relief work; and that the contract in question is therefore void. The larger part of the argument of the appellant on this branch of the case is an attempt to show that the relief department was organized to carry on an insurance business; that the business actually carried on was of that character; and that the contract of the defendant with respect to it was a contract to provide insurance, and therefore void. The claims thus made were urged in Donald v. Railway Co., supra; and it was there decided that the relief department was not an insurance company, and we are of the opinion that it does not do an insurance business, within the meaning of the laws of this state which regulate insurance companies. Whether the chartered rights of the defendant are sufficiently broad to permit it legally to aid in carrying on the relief department is a question presented by the pleadings, and referred to by the appellant briefly in argument, and not mentioned in the argument of the appellee. The argument of the appellant on that point is little more than an assertion that the defendant has not the power to aid the association. Under these circumstances, we do not feel justified in announcing any rule which...