194 Iowa 352 | Iowa | 1922
I. The defendant is a fraternal organization, which insures the lives of its members, and is resident at Lincoln, Nebraska. In June, 1907, John W. Melton, resident of Marshalltown, Iowa, became a member of such organization, and purported to continue as such until the date of his death, in November, 1917. At the time of his becoming a member of the organization, he was a butcher by occupation. Two years later, he became a paid member of the fire department of Marshall-town, Iowa, and so continued to the date of his death. This latter occupation was a prohibited occupation, under the Edicts of the defendant association. The formal contract of membership consisted of an application signed by the insured, and of a certificate issued by the defendant. Both the application and the certificate contained refer
“I hereby declare that the above are fair and true answers to the foregoing questions, and I hereby agree that these statements, together with those hereinafter made to the physical examiner in this application, and the Edicts of the Executive Castle of the Royal Highlanders now in force, or that may hereafter be adopted, shall form the basis of this contract for beneficial membership; that any untrue or fraudulent answers, any suppression of facts in regard to my health, age, occupation, personal habits, or neglect to pay any monthly payment which shall be required by the Executive Castle, within the time provided by the Edicts thereof, or neglect to pay the dues fixed by the said Edicts in the manner and at the time provided by said Edicts of the Castle to which I may belong, shall make null and void my benefit certificate, and forfeit all payments made thereon. I also agree that, should I now be engaged in, or should I hereafter engage in any occupation, trade, or calling prohibited by the Edicts of the Executive Castle, that, from and after the -date of my so engaging in such prohibited occupation, trade, or calling, my right, as well' as that of my beneficiary, to participate in the benefit fund of the fraternity shall cease and become null and void, and that I shall stand suspended as a member, without any notice from the Tributary Castle, and any payment of dues or monthly payment by me, or receipt thereof by any officer or member of the Tributary Castle to which I belong, or to the Executive Castle, shall not be binding on the fraternity. * * * This application and the laws of the Executive Castle now in force, or that may hereafter be adopted, are made a part of -the contract between myself and the Executive Castle, and I, for myself and my beneficiary or beneficiaries, agree to conform to and be governed thereby.”
The certificate issued by the defendant, so far as material herein, was as follows:
“This certifies that John William Melton has been admitted
The Edicts contained the following:
“The following persons shall not be admitted to beneficial membership in this fraternity. * * * Members of paid and professional fire departments.”
It will be seen from the foregoing that, under the strict terms of the application and of the certificate, the membership of insured automatically ceased at the time that he became “a member of a paid and professional fire department.”
The plaintiff pleaded an estoppel, in that the insured had at all times deemed himself a continuing member, and was treated and regarded as such by the association and by its local Castle at Marshalltown; that he had regularly paid his monthly dues, and the same had been at all times received by the officers of the association, with full knowledge of the changed occupation of the insured; that he had at all times complied with all the rules and regulations of the association, and had responded to
Up to this point, we have stated only a part of the Edicts. If the foregoing quotations from the application and certificate were all that there was to be considered, a fair case of estoppel or waiver of the forfeiture would be presented, and appellant does not, in argument, contend otherwise. Trotter v. Grand Lodge, 132 Iowa 513; Gollver v.. Modern Woodmen, 154 Iowa 615; O’Connor v. Knights and Ladies, 178 Iowa 383. But Sections 125 and 126 of the Edicts, so far as material herein, are as follows:
“The following persons shall not be admitted to beneficial membership in this fraternity. * * * Members of paid and professional fire departments. Any person performing either occasionally or eonimuously the work of any of the callings or occupations mentioned or referred to in this section shall be deemed to be engaged in a hazardous and prohibited occupation. The several risks attending engagement in any such occupation, habit, or practice are not assumed by this fraternity, and no death or disability growing out of engaging in such occupation, habit, or practice 'is- insured against by this fraternity.
“Sec. 126. Penalty for Engaging in Prohibited Occupations. No benefit shall be paid on account of the death or disability of any member due or traceable to such member being engaged in any prohibited occupation; provided that a member engaging directly in the manufacture or sale of intoxicating liquors as a beverage in any capacity whatever shall ipso facto exclude him from membership, annul his certificate, and void all his rights in this fraternity.”
The foregoing provisions were pleaded by the defendant as á part of its defense. The theory of defense put forward is that, even though the application and the certificate were drastic in their forfeiture provisions, yet the Edicts themselves qualified the harshness, and proclaimed amnesty, as it were, from the drastic provisions, and recognized a continuing membership and valid life insurance, notwithstanding change of occupation, subject only to the proviso that the insurance should not apply to injury or death resulting from the prohibited occupation. Upon this theory, the receipt of dues would be consistent with
Referring now to Section 125 of the Edicts, it will be noted that the first part thereof declares that membership in a “paid and professional fire department” is a prohibited occupation. This is consistent with the application and with the certificate. Is the language of the latter part of such Section 125 intended to relax or relinquish the strictness of the first part? Or is it intended thereby to create and define a class of persons who may be received and continued as members, subject to the qualification that their insurance indemnity shall not apply to injury or death growing out of such prohibited occupation, even though they engage in it only “occasionally?” It does not purport in terms to legalize the membership in a “paid and professional fire department.” The work of a fire department is to fight fire. A person may be called upon to do such work, even though he be not a member of a paid and professional fire department. Suppose, for instance, that the insured were a member of a volunteer fire department of a small town, and were called upon to fight fire a half dozen times in the course of a year. He would not come within the provisions of the first part of such Section 125: he would come within the provisions of the latter part of such section. His membership in such volunteer fire department would not be prohibited; but he would not be deemed to be insured as against injury received while engaged in the occupation of fighting fire. This is the construction, we think, which represents the real intent of the association in the adoption of the Edicts. It renders the application and the certificate and the Edicts all consistent.
As such'member, he was entitled to the same benefits as other members, and was subject to the same qualifications. He thereby fell into that class of members who are described in Section 125 as “any person” who performs “either; occasionally or continuously the work of any of the callings or occupations mentioned,” etc. The work of a fire company is one of the occupations “mentioned.” This classification applied to all members of the society who may even occasionally do such work. The penalty is that their insurance shall not be deemed to cover risks arising out of such occupation or work. • This is not a forfeiture provision. It is a restricted insurance. The defendant is a mutual assessment company, and its rates of assessment are predicated upon the reduced hazard of this restriction. Presumptively, the insured never paid an assessment as indemnity for any risk growing out of such occupation. The injury which resulted in the death of the insured did grow out of the occupation of a fireman. The insured received his fatal injury while attempting to board a fire truck which was proceeding to a fire.
The net result of our analysis of the contract is: Though a member in good standing, the deceased was not insured against injuriés growing out of the occupation of fireman. Giving to the plaintiff the benefit of every liberality of construction in her favor, we see no escape from the foregoing conclusion.
II. It is alleged by the plaintiff that no competent evidence was produced as to the cause of the injury suffered by the insured, and that, therefore, it cannot be said, upon this record, that the plaintiff’s injury arose out of the hazardous occupation. This argument is predicated upon the fact that the defendant proved the circumstances of the injury suffered by the insured by putting in evidence the proofs of loss which
The decree entered below must, accordingly, be — Reversed.