Simons v. Iowa State Traveling Men's Ass'n

102 Iowa 267 | Iowa | 1897

Granger, J.

The plaintiff is a member of, and the holder of a certificate in, the defendant association, which was an indemnity against loss by accident; the association agreeing to pay twenty-five dollars per week in case plaintiff should become disabled and unfit for the transaction of business by accident, and due notice of the accident shall be given the association within thirty days from the happening of the accident. This action is for disabilities resulting from an accident occurring March 2, 1892, at Omaha, Neb. A defense to the action is that due notice was not given. The following is the provision of the constitution of the association requiring notice of an accident because of which indemnity is asked: “Sec. 4. Whenever any member of this association in good standing shall by accident become disabled and unfit for the transaction of business (provided said accident shall not happen while said member is under the influence of intoxicating liquors or narcotics), and due notice of said accident shall have been given the association within thirty days from the happening of said acci-' dent, and shall furnish che board of directors with suitable proofs of his disability, he shall receive from this association the sum of twenty-five dollars per week for the time said disability continues, not exceeding fifty-two weeks. But no claim for weekly benefits shall be made after thirty days from the date said claim accrues.” It will be seen that the notice required is not of the disability, but of the accident. The notice claimed to have been given is by letters that were written within the thirty days from March 2, 1892, but the claim of appellant is that they do not give notice of an accident. To properly judge of the sufficiency of the notice, it will be well to have in mind the facts as to the accident of which notice was required. They can be no better presented than in the language of plaintiff in his testimony as follows: “Am the plaintiff; forty-seven years old. Was a member of the defendant association in March, 1892, and am yet. Was in Omaha on the second of March, on the Dodge street car. I went to get off the car on the corner of Thirteenth and Dodge streets, and just as 1 went to step off, the conductor pulled the bell. The car started, and I came down on my right foot, having a grip full of coffee in my right hand and a cane in my left. I fell on my knee, partially. I just picked myself up, and my foot hurt me. I then went to the Millard Hotel, about fifty feet, where I stayed the rest of the day. I struck the ground with my right fQot. The surface was cobblestone and asphalt,— large, square blocks. I fell onto the knee. The fall didn’t produce a pain in the knee; it was in the foot at the time. Of course, it extended up the leg. I didn’t notice any particular illness at the time, except in the foot. It hurt me when I struck the ground, I came down so hard. My weight is two hundred and thirty pounds; my height, five feet eight and one-half inches. I wear a six and one-half shoe. I met in the Millard hotel the clerk and Mr. Hahn, whose testimony has been read. I remained in Omaha a couple of days before I went home. I arrived in Lincoln the second day after. Dr. E. E. Griffen, my family physician, was called. My foot was swollen, and some inflamed. There was no pain in the ankle joint, to speak of. It seemed to be more in .the heel than any place. The pain in my foot seemed to be in the heel, and right in the center of the heel.” There is no pretense but that the recovery is sought because of the accident in stepping from the . street car in Omaha, March 2, 1892. It will be seen that it was a well-understood accident, with the' disabilities immediately following. To properly understand the letters claimed to constitute the notice, it will be well to state that in August, 1891, the plaintiff met with an accident resulting in injury to his left foot, of which notice was given, and the weekly indemnity was paid therefor, and it is to this injury that reference is made in the letters. March 7,1892, plaintiff wrote the secretary of the association as follows: “Lincoln, Neb., March 7, 1892. E. E: Haley, Esq., Secty. Iowa State Traveling-Men’s Ass’n, Des Moines, Iowa — Dear Sir: I write to inform you that by the advice of my physician, Dr. E. E. Griffen, of Lincoln, Neb., who has been attending me during and since my injury in August, during which time I have been and am very lame; that he examined my right foot on Saturday, March 5, ’92, and ordered me to lay up in bed or room, and under no circumstances to walk on it, as I had badly sprained the metatarsal bone of same and that was the cause of my disability, and it was caused from being lame and favoring my left foot that was injured Aug. 6, ’91. I am not able to walk or work and so write to inform you of the fact. With regards, am truly yours, Eobt. M. Simons.” In another letter, under date of March twelfth, in answer to one from the secretary, plaintiff says: “I can- clearly prove the cause of my being again laid up as .to be from former accident.” Again, in a letter of April 8, 1892, after the thirty days, the plaintiff said: “There is no disease about it, and the doctor asked me when I had sprained the foot. I could not say, only at Omaha, March second, I was so lame I could not work. The supposition' was that I had favored the left foot, and, by doing so, sprained the right one.” These letters are the only claim of notice, and, while the two last ones contain considerably more than is set out, there is not even an indirect reference to the accident. The accident of which notice was to be given is not the injury alone, but the cause of it. By the letters, but one cause is indicated for the disability or inj ury in question, and that is the added strain upon the right foot in consequence of favoring the left one, — not yet strong, because of the former accident. This action is not to recover for such a case, and no such claim is made. The accident described in the petition is substantially that stated by plaintiff in his testimony, and it is said in the petition that the “injury was the direct result of the accident above stated.” The cases make some exceptions as' to the time in which notice may be given, where the facts were not, and could not be, known, so as to conform to the manifest intent of the parties to the contract, even though against its strict letter, but the issues here present no such question. In this case no notice was ever given of the accident for which recovery is sought, and it is to be conclusa ively said that, when the letters were written, indemnity because of such an accident was not contemplated; None of the authorities cited by appellee bear on this question. Error was assigned upon the action of the district court holding that the letters constituted sufficient notice. In this we think the court erred, and the judgment will stand bevebsed.