McConnell v. The Iowa Mutual Aid Association
| Decision Date | 02 October 1889 |
| Citation | 43 N.W. 188,79 Iowa 757 |
| Parties | MCCONNELL v. THE IOWA MUTUAL AID ASSOCIATION et al |
| Court | Iowa Supreme Court |
Decided May, 1890
Appeal from Wapello District Court.--HON. H. C. TRAVERSE, Judge.
ACTION in chancery to compel an assessment upon the members of the defendant corporation, and the collection and payment thereof, to the amount of two thousand dollars, upon a certificate or policy issued to the husband of plaintiff in his lifetime, obligating the defendant corporation to make such assessment, collection and payment upon his death. A demurrer to defendants' answer was sustained, and defendants, standing upon certain counts of their answer refused to further plead, and appealed from the judgment on the demurrer.
AFFIRMED.
McNett & Tisdale, for appellants.
E. L Burton and Payne & Eichelberger, for appellee.
I.
The petition alleges that plaintiff's husband, in his lifetime, became a member of the Iowa Mutual Aid Association, a corporation organized under the laws of Iowa for the purpose of insuring the lives of its members upon the mutual assessment plan, upon the terms and conditions prescribed by the articles of incorporation and by-laws of the association, and the policies or certificates issued by it, or contracts entered into with the members insured; that such a certificate was issued to plaintiff's husband, or such a contract was entered into with him by the defendant corporation; that defendant did not attach to the certificate or policy, nor endorse thereon, the application or representations made by the assured, plaintiff's husband, which, by its terms, are made a part of the policy; and that the assured subsequently died, and was at the time of his death a member of the defendant association. The petition further alleges that immediately upon the death of her husband she gave notice thereof to the association, and within sixty days caused proofs of the death of the assured to be filed with the secretary of the association, which complied with the requirements of the policy; that she made demand about one month before suit was brought that an assessment be made, as required by the policy, for payment of the sum due thereon, and was then first informed by the association that it would make none, and that it denied liability on the policy; thus waiving, as it is alleged, proofs of loss. The certificate, or policy, is made a part of the petition, and shows that it was issued upon the consideration of the payment in cash of ten dollars, and the further annual payment of $ 2.50, and the prompt payment of benefit assessments to be legally levied by the association, which became bound thereby to make assessments upon the members of the association upon the death of the assured, and therefrom to pay to plaintiff the proceeds thereof, not exceeding two thousand dollars, in forty-five days after the filing of proofs of death of assured, which, with notice, shall be made within sixty days after death.
Certain conditions were indorsed on the policy and made a part thereof. One was in this language: "No action of any kind shall be maintained upon this certificate as against the association for any cause connected therewith, unless satisfactory proofs are furnished the association within sixty days, nor unless such action is commenced within six months after the happening of the death on account of which the action is brought; any statute of limitation or law to the contrary notwithstanding."
The answer, in the fifth count, alleges that the assured, in an application required by the articles of association and by-laws of the defendant incorporation, represented and warranted that he was in good health, and such warranty became a condition of the policy, when in fact he was not in good health, but was affected with consumption, an incurable disease of which he afterwards died. It is alleged in the sixth count of the answer that the action is barred by plaintiff's failure to perform the condition of the policy requiring proof of death to be furnished within sixty days, and the action to be commenced within six months thereafter. Other allegations of the answer assailed by the demurrer need not be recited, as defendant does not stand upon its pleadings presenting them, but rests upon the questions raised by the action of the court in sustaining the demurrer to the fifth and sixth counts of the answer.
II. The demurrer to the fifth count of the answer was based upon...
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