Young v. Railway Mail Association

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

103 S.W. 557

126 Mo.App. 325

YOUNG, Respondent, v. RAILWAY MAIL ASSOCIATION, Appellant

Court of Appeals of Missouri, St. Louis

June 11, 1907

Appeal from Lawrence Circuit Court.--Hon. F. C. Johnson, Judge.

AFFIRMED.

Judgment affirmed.

Bernard Greensfelder, Henry Brumback, and Charles L. Henson for appellant.

(1) An injury resulting from an intentional and voluntary act, done in the usual and ordinary manner, and in the doing of which nothing unforseen, unexpected or unusual occurs, such injury cannot be said to have been effected through external violent and accidental means, although the injury itself was unusual and unexpected. Fedar v. Assn., 107 Iowa 538, 78 N.W. 252, 43 L. R. A. 693; McCarthy v. Insurance Co., 8 Biss. (U.S.) 362; Niskern v. Brotherhood of Carpenters of America, 87 N.Y.S. 640; Cobb v Accident Assn., 96 Ga. 818, 22 S.E. 976; Southard v Assurance Co., 34 Conn. 574; Appel v. Insurance Co., 86 A.D. 83, 83 N.Y.S. 238; Scarr v. Assurance Corporation, King's Bench Div. (1905), 1 K. B. 387; 1 American and English Annotated Cases, 787 and notes; 92 Law Times 128; Clidero v. Insurance Co., 29 Sc. L. 303. (2) When the laws of a benefit society are referred to in the certificate of membership, in clear and specific terms, and made a part thereof, the certificate, as well as the constitution, by-laws, rules and regulations must be considered as a whole in adjusting the rights of parties thereunder. Goodson v. Accident Assn., 91 Mo.App. 339; Laker v. Royal Fraternal Union, 95 Mo.App. 353; Hannum v. Waddell, 135 Mo. 153; Coleman v. Knights of Honor, 18 Mo.App. 194; Grand Lodge v. Elsner, 26 Mo. 114; Loyd v. Modern Woodmen of America, 113 Mo.App. 19; Relief Fund v. Tierney, 116 Mo.App. 447; Westerman v. Supreme Lodge, 196 Mo. 758; Grand Lodge v. Sater, 44 Mo.App. 445; Schule v. State Home Lodge, 63 Mo.App. 277; Ben. Assn. v. Bunch, 109 Mo. 560; Wallace v. Life Assn., 80 Mo.App. 102; Bacon on Benefit Soc., 6 Life Ins., secs. 69-81; Niblack on Benefit Societies, sec. 218. Foreign authorities: Britton v. Supreme Council, 46 N.J.Eq. 102; Lodge v. Knight, 117 Ind. 489; Lorcher v. Supreme Lodge, 72 Mich. 316; Lamont v. Legion of Honor, 31 F. 177; O'Brien v. Supreme Council, 176 N.Y. 597; Polk v. Life Assn., 137 F. 273; Grand Lodge v. Gandy, 53 Mo.App. 142, 63 N.J.Eq. 692.

Edward J. White for respondent.

(1) The defendant, as a non-resident accident association, not shown to have complied with the laws of Missouri, under its policy, payable not alone to the members of insured's family, but to his legal representatives, or substituted beneficiaries, insuring its members without initiation, or a ritualistic form of work, was not a fraternal beneficial association, in Missouri, but a straight accident insurance association. Baltzell v. Modern Woodmen, 98 Mo.App. 153; Moore v. Insurance Co., 112 Mo.App. 696; Hoffmeyer v. Muench, 59 Mo.App. 20; Jacobs v. Life Assn., 142 Mo. 49; Hartzberg v. Modern Brotherhood, and c., 110 Mo.App. 328; Shotliff's v. Modern Woodmen, 73 S.W. 326; Kern v. Supreme Council, 167 Mo. 471. (2) By-laws and constitution of a fraternal beneficial association, even, cannot be made retroactive, unless clearly so intended. Modern Woodmen v. Wieland, 109 Ill.App. 340. The constitution and by-laws of the original insurer, at the time existing, or such as it might subsequently adopt, were made parts of the contract of insurance, but not so another constitution and by-laws of another company, adopted after the contract of insurance was made and not shown to have been accepted or understood by the insured. Purdy v. Life Assn., 101 Mo.App. 91; Morton v. Supreme Council, 100 Mo.App. 76; Campbell v. American Ben. Club, 100 Mo.App. 249; Miller v. Tuttle (Kan.), 73 P. 88; Suess v. Supreme Council (La.), 34 So. 697. (3) An injury due to a voluntary lift, was held to be an "accidental injury," by the Kansas City Court of Appeals, within the terms of a policy of insurance similar to that sued on in this case, in the case of Summers v. Fidelity Mutual Association, 84 Mo.App. 612; Fetter v. Fidelity & Casualty Company, 174 Mo. 256; Insurance Co. v. Schmaltz, 53 S.W. 51; Patterson v. Accident Co., 25 App. D. C. 46; Horsfall v. Insurance Co., 32 Wash. 132, 72 P. 1028; Wilkinson v. Insurance Co., 72 S.W. 1016; Pernonger v. Union Casualty Co., 37 So. 461; McGluckey v. Casualty Co., 80 Me. 251, 14 A. 13; Insurance Co. v. Schmaltz, 66 Ark. 588, 53 S.W. 49; Daily v. Assn. (Mich.), 57 N.W. 186; Insurance Co. v. Fleming, 65 Ark. 61, 44 S.W. 464; Wilson v. Assn., 53 Minn. 470, 55 N.W. 626; Rustin v. Accident Co., 58 Neb. 792, 79 N.W. 712, 46 L. R. A. 253; McCarthy v. Insurance Co., 8 Biss. 302; Accident Assn. v. Barry, 131 U.S. 100, 33 L.Ed. 60; Insurance Co. v. Schmaltz, 66 Ark. 588, 53 S.W. 49; Rustin v. Accident Co., 58 Neb. 792, 79 N.W. 712, 46 L. R. A. 253. (4) The defendant's denial of liability waived the necessity for notice of the injury, but if this had not been true, the notice given was both timely and sufficient. "Immediate notice is such reasonable notice as the circumstances would require." Paper Co. v. Fidelity Co., 104 Mo.App. 157, 78 S.W. 320.

OPINION

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 fifteen dollars per week, not to exceed fifty-two 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 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 twenty-six 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 fifteen dollars per week. Defendant rejected the claim hence this suit to recover fifteen dollars per week for twenty-six 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 by-laws 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 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 three hundred and ninety dollars, from which defendant appealed in the usual way.

The evidence shows that at about eight 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 one hundred and fifty 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 the stall. To do this, the sack had to be...