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

• Decision Date: 23 November 1918
• Docket Number: No. 32366.,32366.
• Parties: WARD v. INTERSTATE BUSINESS MEN'S ACC. ASS'N.
• Court: Iowa Supreme Court

185 Iowa 674

169 N.W. 451

WARD

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

No. 32366.

Supreme Court of Iowa.

Nov. 23, 1918.

Appeal from District Court, Black Hawk County; H. B. Boies, Judge.

Action on an accident insurance policy. A demurrer to the answer was sustained, and, defendant having elected to stand on the ruling, judgment was entered accordingly. Defendant appeals. Affirmed.Dunshee, Haines & Brody, of Des Moines, and Pickett, Swisher & Farwell, of Waterloo, for appellant.

Edwards, Longley, Ransier & Smith, of Waterloo, for appellee.

LADD, J.

The defendant is a mutual assessment accident association, and on January 31, 1916, issued a certificate of membership to G. L. Ward, whose death on April 10, 1917, resulted from bodily injury effected solely and independently of all other causes or conditions concurring, contributing or intervening, through external, violent and accidental means. Proofs of death were furnished, but the association refused to pay the $5,000 indemnity claimed. Its liability for $5,000 was denied in its answer, which alleged that in the proofs of death furnished by plaintiff she made oath that “her deceased husband came to his death by the overturning of the automobile,” that he “was instantly killed by reason of being caught under and crushed by said automobile as it turned over and that there was no witness to the accident or injury, and it alleged the facts to be as shown.” It set out that portion of “Part C” of the certificate, stipulating that “the compensation payable for loss resulting from the overturning of any automobile or from the member being thrown from any automobile shall not exceed $1,000, and that the payment of such sum shall discharge the association from all further liability, unless the accident shall be caused by the automobile being struck by a railway train or engine or by an interurban or street car or by another automobile without any fault upon the part of the driver of the automobile in which the member was riding,” and alleged that by virtue thereof, and under the proofs of death filed, its liability to the plaintiff on account of the death of her said husband was limited to the payment of $1,000 and that she “had wholly failed to furnish any proof or evidence showing or tending to show that the overturning of the automobile causing the injury from which her husband was killed was due to the said automobile being struck by a train or engine or by an interurban or street car or by another automobile, and that by reason of said facts the plaintiff has only presented a claim against it under her proofs for the sum of $1,000,” and that said amount had been tendered and refused.

To this answer the plaintiff demurred on the ground in substance that the facts pleaded therein did not constitute a defense for that the burden was on defendant to plead any defense or partial defense it might have, and that the provisions of “Part C” quoted, constituting a limitation upon the amount of liability or a partial exemption therefrom, are defensive matters, and necessarily to be pleaded affirmatively. In other words, the limitation of the amount of indemnity to $1,000 is not consequent on death “resulting from the overturning of any automobile” or “being thrown from any automobile,” as pleaded in the answer, but to invoke such limitation or exemption it must appear, and hence be pleaded by way of defense (this being omitted from the answer), that death was not caused by the automobile “being struck by a railway train or engine or by an interurban or street car or by another automobile, without any fault on the part of the driver of the automobile in which” the insured was riding. The demurrer was sustained, and the controversy is with reference to whether the portion omitted from the answer should have been pleaded to constitute a good defense. Counsel for appellant concede that what was pleaded, i. e., that the insured was killed by the overturning of the automobile, must have been set up in the answer to be available as a defense, and such is the voice of authority with respect to exceptions or limitations on the indemnity stipulated. McClure v. Great Western Accident Association, 141 Iowa, 350, 118 N. W. 269.

In construing the clause quoted from “Part C” of the certificate much depends on the meaning to be accorded the word, “unless.” The word, “unless,” used in the act, is thus defined by Webster:

“Upon any less condition than (the fact or thing stated in the sentence or clause which follows): if not; supposing that not; if it be not; were it not that.”

The Century Dictionary defines the word as meaning:

“If it be not that; if it be not the case that,” etc.

These definitions clearly indicate, as was said by Douglas, J., in City of Hickory v. Southern Railway Co., 137...