Young v. Railway Mail Ass'n

• Decision Date: 11 June 1907
• Citation: 103 S.W. 557,126 Mo. App. 325
• Parties: YOUNG v. RAILWAY MAIL ASS'N.
• Court: Missouri Court of Appeals

103 S.W. 557

126 Mo. App. 325

YOUNG v. RAILWAY MAIL ASS'N.

St. Louis Court of Appeals. Missouri.

June 11, 1907.

1. INSURANCE — ACCIDENT INSURANCE — FRATERNAL SOCIETIES.

An association of railway mail clerks, organized to furnish accident insurance to its members, without any initiatory ceremony or ritualistic form of work, which admitted members merely on their paying the required dues, was an accident insurance company, and was not within Laws 1879, p. 65, regulating fraternal benefit associations.

2. SAME—REINSURANCE—BY-LAWS OF REINSURING ASSOCIATION.

Where plaintiff obtained a policy in an accident insurance company, providing that plaintiff's right to participate in the benefit fund depended on his compliance with the insurer's constitution and by-laws, and thereafter the insurer's business was reinsured, and assumed by defendant association, plaintiff was not bound to show compliance with the constitution and by-laws of the latter, in an action on his policy, in the absence of proof of an agreement to do so.

3. SAME — SUBSEQUENT BY-LAWS — IMPAIRMENT OF CONTRACT.

An agreement that insured will comply with the insurer's constitution and by-laws does not bind him to comply with by-laws adopted after the issuance of his certificate of insurance, which in any manner impair his contract or impose on him an additional burden.

4. SAME—PROOF OF INJURY—MARKS OF VIOLENCE.

A member of an accident insurance association was not bound by a subsequent by-law which provided that the association should not be liable for accidental injury, of which there was no external marks of violence upon the body of the assured, which constituted an additional restriction to those contained in his policy.

5. SAME—NOTICE OF INJURY—TIME.

On April 29, 1905, plaintiff suffered an accidental injury, but did not realize the seriousness thereof, or that it would prevent him from following his occupation until May 1, 1905, whereupon he gave notice thereof under his accident policy on the succeeding day. Held, that such notice was given within a reasonable time, and constituted compliance with the provision of the policy requiring "immediate notice."

6. SAME—WAIVER.

Where, after plaintiff in an action on an accident policy had given notice of his injury, defendant accepted proofs of loss, made no objection that the notice was not given in time, and the president of the local branch of the association recommended payment of the claim subject to a stipulation, defendant either accepted the notice as sufficient or waived the time of giving it.

7. SAME—EVIDENCE—RELEVANCY.

In an action on an accident policy for injury, consisting of the bursting of a blood vessel in plaintiff's lungs by lifting a heavy mail sack, evidence that on several occasions, prior to his injury, he had procured leave of absence on account of illness, was irrelevant.

8. SAME—ACCIDENTAL INJURY—PRIMA FACIE CASE.

In an action on an accident policy, proof that plaintiff suffered lesion of a blood vessel of the lungs while assisting to lift a heavy mail sack, and that such lesion subsequently entirely healed, held sufficient to establish a prima facie case that the injury was caused by external violence and accidental means, within the terms of the policy.

9. SAME — PLEADING — ADMISSIONS—ISSUES AND PROOF.

Where in an action on an accident policy, plaintiff alleged that defendant company assumed all the liabilities of the insurer under plaintiff's policy, and defendant in the answer alleged that before the date of plaintiff's injury it assumed all the liabilities, if any, of the association issuing plaintiff's certificate, but subject to the provisions of defendant's constitution and by-laws in force at the time such liabilities, if any, should accrue, plaintiff was not required to establish that defendant had assumed the liabilities of his insurer, but the burden was on defendant to introduce some law showing that plaintiff's case was excepted from such assumption.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by John W. Young against the Railway Mail Association. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas. L. Henson, for appellant. Edw. White, for respondent.

BLAND, P. J.

On May 9, 1902, the National Association of Railway Postal Clerks, a corporation, doing an accident insurance business in this state, issued its benefit certificate or policy of insurance to plaintiff, agreeing, among other things, to pay him the sum of $15 per week, not to exceed 52 consecutive weeks, for loss of time resulting from bodily injuries caused or produced "through external, violent accidental means, which shall wholly and continuously, disable him from following the occupation of a railway postal clerk," in which occupation plaintiff was at the time engaged. Among other conditions of the policy are the following: "That the above-named member complies with all the laws, rules, and regulations, now governing the National Association of Railway Postal Clerks, and that the said member further agrees to comply with all future laws that may hereafter be enacted while he shall claim membership under the certificate, all the before mentioned laws, rules, and regulations being declared to be material parts of this contract." Afterwards the National Association of Railway Postal Clerks, for a valuable consideration, transferred all its assets to the defendant Railway Mail Association, a corporation doing a similar business. The latter company, for a valuable consideration, assumed and agreed to pay the holders of policies or certificates (including plaintiff) in the former company, whatever sums might become due them under the terms of their policies. On April 29, 1905, plaintiff, while engaged in his occupation of railway postal clerk, was injured through (what is alleged in his petition) "purely an accidental cause." The allegations are as follows: "While lifting a heavy mail sack, in the performance of his duties as such postal clerk, plaintiff ruptured a blood vessel on his right lung, and so strained, pulled, and injured the veins, tendons, and muscles connecting with said right lung as to cause severe hemorrhages from the lung so injured as aforesaid. That said injury was followed by a swelling of the right breast, and severe pain and ulceration of the lung and hemorrhages of blood from said lung or blood vessels, as a result of which the plaintiff was compelled to forego his duties as such railway postal clerk, and to submit himself to medical treatment and attention, for a total period of 26 weeks, during all of which time he was unable to perform any of his duties as such postal clerk, or to perform labor of any kind." Plaintiff made proofs of loss and application to defendant for the indemnity of $15 per week. Defendant rejected the claim, hence this suit to recover $15 per week for 26 weeks, the time plaintiff alleges he was incapacitated to work by reason of his injury. The petition is in the usual form, and alleges a compliance on the part of plaintiff with all the conditions of the contract of insurance and with the constitution and bylaws of both companies. The answer was first a general denial, and the following special defenses: First, that plaintiff's injury, "if any, was not a bodily injury effected through external, violent, and accidental means," and for this reason plaintiff cannot recover; second, "that whatever disability, if any, which plaintiff may have received at the time alleged and while said certificate was in force and effect, such disability did not result wholly from such injury, as is in the constitution and by-laws of the defendant provided," and for this reason plaintiff cannot recover; and, third, "that the constitution and by-laws of the defendant at the time of the alleged injury mentioned in the petition provided that no benefit or sum whatever should be payable in any case whatsoever unless the accident alone should result in producing visible external marks of injury or violence suffered by the body of the member," and that no external marks of violence were produced on plaintiff's body by the alleged injury, for which reason he cannot recover. Plaintiff recovered a judgment for $390, from which defendant appealed in the usual way.

The evidence shows that at about 8 o'clock a. m., on April 29, 1905, plaintiff and his helper were receiving and storing mail in a mail car in the city of St. Louis. A sack of second-class mail matter, weighing about 150 pounds, was pushed into the door of the car. Plaintiff took hold of one end of the sack and pulled it into the car. His helper then took hold of the other end, and the two made an effort to place the sack in a stall. To do this, the sack had to be raised about six feet from the floor, and in raising it plaintiff ruptured his right lung, became sick, and in a few minutes commenced to spit blood. The hemorrhage was from his lungs, and his attending physician testified there was a lesion of his right lung; that the hemorrhage continued at intervals for several weeks, and, on account of the injury, plaintiff was physically unable to resume his occupation for a period of more than 26 weeks. The evidence tends to show that plaintiff had no lung trouble before his injury, and that he had entirely recovered at the time of the trial; that a rupture of the lungs in the circumstances related (by lifting) is a very unusual occurrence, and not to be expected from that sort of muscular exertion. Defendant offered in evidence its constitution and by-laws, which on objection made by plaintiff were excluded by the court. This ruling of the court is assigned as error.

1. It is provided in section 6, art. 15, of the constitution and by-laws of defendant, that "no benefit or sum whatever shall be payable in any case whatsoever unless the accident alone results in producing visible external marks of injury or violence suffered by the body of the member." There...