Wertheimer v. TRAVELERS'PROTECTIVE ASS'N

• Decision Date: 28 March 1933
• Docket Number: No. 715.,715.
• Citation: 64 F.2d 435
• Parties: WERTHEIMER v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.
• Court: U.S. Court of Appeals — Tenth Circuit

64 F.2d 435 (1933)

WERTHEIMER v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.

No. 715.

Circuit Court of Appeals, Tenth Circuit.

March 28, 1933.

J. D. Skeen, of Salt Lake City, Utah (E. J. Skeen, of Salt Lake City, Utah, on the brief), for appellant.

Paul H. Ray, of Salt Lake City, Utah (Emmett M. Bagley and Robert L. Judd, both of Salt Lake City, Utah, on the brief), for appellee.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

On the evening of June 20, 1930, the body of David L. Wertheimer was discovered in the weeds back of an apartment house in Salt Lake City. He had been dead about 12 hours. There was a bullet wound in his chest, and a revolver which had been seen in his possession, with one shell discharged, was found near by. No one saw the killing, as far as the record shows, although neighbors heard some one talking loudly about dawn, and shortly thereafter a shot was heard.

The deceased was a member of the appellee, a fraternal benefit society organized under the laws of Missouri. Appellant furnished proofs of death, in which she stated that she was without personal knowledge as to the circumstances of his death, other than that his body was found as above narrated. She said, "As far as I know there was no eyewitness." The physician's certificate, a part of the proofs, stated the cause of death to be suicide. Such proofs are competent, although not conclusive, evidence of the facts stated therein. Mutual Ben. L. Insurance Company v. Newton, 22 Wall. 32, 22 L. Ed. 793; Travelers' Ins. Co. v. Melick (C. C. A. 8) 65 F. 178, 187, 27 L. R. A. 629; Union Mut. Life Ins. Co. v. Payne (C. C. A. 5) 105 F. 172; Cooley on Insurance (2d Ed.) p. 5928.

The society declined to pay the loss, and this action to recover the proceeds of the certificate followed. Appellant alleged that the insured came to his death "independently of all other causes, through external, violent and accidental means." In defense, the appellee set up the following clause of its constitution and by-laws, which are incorporated in the certificate of membership by reference: "This association shall not be liable * * * for intentional injuries or acts causing death, loss of either hand, foot, arm, leg, sight of either eye, or disability inflicted by the member or any other person upon him while sane or insane or when the member dies as the result of injuries sustained as a result of a gunshot wound or the alleged accidental discharge of firearms when there is no eye witness except the member himself, suicide, by the member sane or insane."

The answer alleged that its certificate did not cover the loss sued on, for as much as the member died (1) as a result of a gunshot wound when no eyewitness was present; (2) as a result of self-inflicted intentional injuries while sane or insane; (3) as a result of a murder, if he was murdered; and (4) as a result of suicide by the member, sane or insane. In reply it is alleged that the "eyewitness" clause has been held to be unenforceable by the courts of Missouri, the state of appellee's organization.

The evidence disclosed the facts narrated. Both parties moved for a directed verdict without reservation. The trial court directed a verdict for the appellee. The correctness of that ruling is challenged by this appeal.

The clause in question falls far short of that clarity of expression which should characterize exemptions from a fixed liability. It would appear that in an effort to restrict the coverage, suicide is excepted by two separate clauses in the same sentence; that murder is also excepted, as are all other gunshot wounds where no one witnesses the accident. We are, fortunately, not called upon to interpret the entire clause with precision, for that part of the clause relied upon by the trial court is clear. The association is not liable if "the member dies as the result of injuries sustained as a result of a gunshot wound or the alleged accidental discharge of firearms when there is no eyewitness except the member himself."

If this is a valid limitation upon the liability of appellee, the trial court's decision on the facts cannot be disturbed on this record. No reason is apparent why parties competent to contract may not, if they desire, exclude all deaths from gunshot wounds from the risks assumed; a fortiori, they may restrict the coverage to such wounds as may be inflicted in the presence of an eyewitness. Doubtless the clause was intended as additional protection against self-inflicted injuries; but whatever its purpose, its language is not obscure, and it is an essential part of the contract sued on. "Eyewitness" clauses have been before the courts, and their validity has generally been sustained. Becker v. Interstate Business Men's Acc. Ass'n (C. C. A. 8) 265 F. 508; Werner v. Travelers' Protective Ass'n (C. C. A. 5) 37 F. (2d) 96; Roeh v. Business Men's Ass'n, 164 Iowa, 199, 145 N. W. 479, 51 L. R. A. (N. S.) 221, Ann. Cas. 1915C, 813; Moses v. Ill. Comm. Men's Ass'n, 189 Ill. App. 440; Schumacher v. National Travelers' Ben. Ass'n, 118 Kan. 523, 235 P. 844; Southern Travelers' Ass'n v. Shattuck (Tex. Civ. App.) 2 S.W.(2d) 568; Lundberg v. Interstate Bus. Men's Ass'n, 162 Wis. 474, 156 N. W. 482, Ann. Cas. 1916D, 667. For other cases, see Annotation, 62 A. L. R. 39. Opposed, Rollins v. Business Men's Acc. Ass'n, 204 Mo. App. 679, 220 S. W. 1022, 1024. Cf. Utter v. Travelers' Ins. Co., 65 Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913, which deals with a "direct and positive proof" clause. There is no Utah decision holding that such provision conflicts with the public policy of that state.

Appellant's chief reliance is upon the proposition that since this certificate was issued by a fraternal order organized under the laws of Missouri, all other courts are bound by the decisions of the Missouri courts in any litigation between the association and its members; and that an intermediate court in Missouri held, in the Rollins Case, supra, that a clause similar to the one here involved was an unwarranted interference with judicial proceedings. It has been authoritatively held that the construction given to the charter and constitution of a fraternal order by the courts of the state of its creation, is binding upon the courts of other states. Supreme Council of Royal Arcanum v. Green, 237 U. S. 531, 35 S. Ct. 724, 59 L. Ed. 1089, L. R. A. 1916A, 771. The obligations of its members to pay dues and assessments must be uniform, else there is a discrimination among its members, and the structure becomes one thing in one state and another in another. Upon the authority of the Green Case, it was held that the courts of another state could not strike down a by-law which the courts of the state of its creation had sustained. Modern Woodmen v. Mixer, 267 U. S. 544, 45 S. Ct. 389, 69 L. Ed. 783, 41 A. L. R. 1384. But it has not yet been held, even in cases involving fraternal societies,...