177 Iowa 449 | Iowa | 1916
It would seem, therefore, that plaintiff was under no requirement to plead more than that her decedent had a described certificate, generally; that he had met his death in a manner covered by the certificate; and that all conditions thereof had been complied with. But plaintiff chose to do more. While, therefore, the statute does not aid her, and she must take the consequences of her volunteer pleading, that consequence is, on demurrer, no more than that the volunteer matter is an admission. If what is thus admitted avoids a recovery, demurrer will defeat her. It follows that the demurrer is not good merely because the case stated is not enough to recover on, but can be effective only if that be affirmatively admitted which defeats the action. The sole question we have on this record is whether there are such affirmative admissions.
One provision of Exhibit “C” is that the deiendant will pay tor a death which results within six months after injury, and which results “from bodily injuries effected solely by external, violent and accidental means, and without intervening cause.” Another provision is that there is to be no liability for death “resulting from the voluntary or involuntary taking of poison;” another, that there is no liability if the occasion of the accident be bodily infirmity; still another, that there shall be no liability if the occasion of the accident be medical or surgical treatment.
In addition to the matters set out by way of exhibits to the petition, the petition itself avers:
“That said poison was accidentally taken, was neither voluntarily or involuntarily taken by him, but was the result of an accident, as provided for in said certificate and the articles of incorporation and by-laws aforesaid.”
3.
The demurrer, which was sustained, asserts that the petition shows on its face that the death was not caused by accidental means; was caused by a voluntary or involuntary taking of poison, or by an accident resulting from bodily infirmity, or by an accident resulting from medical treatment. It asserts that the petition shows that the death was caused by taking of poison, to wit, a drug administered by the physician of decedent, and taken voluntarily or involuntarily, and that, therefore, the death was not produced by accidental means; asserts that the petition shows that, for
If there be admissions that the death resulted from bodily infirmity, or medical treatment, and that it did not result
There are other things set out in the exhibits which require our consideration,, perhaps as much as those parts of the exhibit upon which defendant lays stress. There is a statement in the certificate of a neighbor and friend that the cause of death was accidental poisoning, and a coroner’s certificate that, on legal inquest, it was found that deceased came to his death by accidental poisoning. The proof of loss, as much an exhibit as is the statement of the brakeman, says that the accident happened from, poison accidentally taken. Bearing in mind, again, that there may be poisoning other
In addition to the matters set out by way of exhibits to petition, that pleading itself avers:
“That said poison was accidentally taken, was. neither voluntarily or involuntarily taken by him, but was the result of an accident, as provided for in said certificates and the articles of incorporation and by-laws aforesaid.”
We think the utmost that can be claimed from the matters set out by way of exhibit is that they have evidentiary force to sustain the ultimate proposition that death resulted from poison taken either voluntary or involuntarily, or from bodily infirmity, or from medical treatment, and did not occur from bodily injuries effected' solely by external, violent and accidental means, and without intervening cause. We have at the threshold, then, the question whether, if admissions made evidence of these things, they are not on demurrer controlled by an allegation of the petition that the death resulted from something other than what this evidence tends to show, and something which is covered by the contract of insurance. It is manifest that if, on the trial, the plaintiff made admissions which were evidence tending to defeat the suit, and defendant made a general admission that it was liable, the last would control the first. The- first inquiry, then, is whether the demurrer did not, by admitting so much of the exhibits as assert accidental poisoning, and admitting the allegation that the poison was accidentally taken, was neither voluntarily or involuntarily taken, but was the result of an accident provided for in the certificate, articles of incorporation and by-laws of defendant, admit away all that is admitted by exhibits attached to the petition. Which is to control, — the admission of said parts of the exhibits and of the general allegation, or the setting out what may be deduced from other parts of the exhibits? This necessitates eonsid
We are of opinion that, if this general statement had stood alone, the petition would not have been vulnerable to demurrer, and demurrer would have admitted what is thus pleaded. It follows that admitting this admits the ultimate liability and right to recover, and makes inoperative on demurrer the evidentiary matter set out in the exhibits to