Van Werden v. Equitable Life Assur. Soc. of U.S.
| Decision Date | 27 October 1896 |
| Parties | WILLIAM VAN WERDEN v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.
FROM the petition it appears that September 19, 1891, the plaintiff paid to the defendant society the sum of five hundred dollars and forty cents, the same being three annual premiums on a three thousand dollar bond or policy of insurance on his life, which policy was afterwards issued to plaintiff; that on the nineteenth day of September, 1892, the defendant sent to plaintiff a receipt for one hundred and sixty-six dollars and eighty cents, being the annual premium due on that date; that on September 19, 1893, the defendant demanded of plaintiff the sum of one hundred and sixty-six dollars and eighty cents, being the third annual premium on said policy, which had already been paid, and which plaintiff refused to again pay; and that because of such refusal defendant notified plaintiff that the policy was not in force, and became suspended and avoided because of the nonpayment of the third annual premium. The petition asks to recover the amount originally paid,--five hundred dollars and forty cents,--with interest. To the petition there was a demurrer, which the court, Hon. C. P. Holmes, sitting as judge, sustained. An amended and substituted petition was filed, to which there was a like demurrer, which the court with Hon. W. F. Conrad then sitting as judge, overruled. Thereafter the defendant answered by a general denial, and the cause proceeded to trial with a jury. At the close of plaintiff's evidence, defendant moved the court to instruct the jury to return a verdict in its favor, which the court denied. At the close of the entire evidence, plaintiff moved for a verdict in his favor, which the court directed and from a judgment thereon the defendant appealed.
Affirmed.
Berryhill & Henry for appellant.
Geo. R Sanderson for appellee.
I.
It is urged that the amended and substituted petition did not differ, in any essential particular, from the original, and that the ruling of Judge Holmes, if not appealed from, should be regarded as the law of the case. It will be remembered that a new petition was filed, to which appellant filed a demurrer. It was the act of appellant, in filing the second demurrer, that necessitated a ruling by the court. The issue of law presented, required the judgment of the court upon it, and we know of no rule of law or practice to guide to a conclusion, except the convictions of the judge sitting as a court to determine the question. If the petition was, in substance, the same as amended, it could have been stricken out on motion. Town of Waukon v. Strouse, 74 Iowa 547 (38 N.W. 408). Appellant did not adopt this course, but, by its demurrer, invoked the judgment of the court, and it was the duty of the court to give it, regardless of its former holdings. See, also, as bearing on this question. Brown v. Cunningham, 82 Iowa 512 (48 N.W. 1042); Richman v. Supervisors, 77 Iowa 513 (42 N.W. 422); McClain v. Capper, 98 Iowa 145 (67 N.W. 102). It may further be said that the substituted petition presented additional facts, because of which the company would be bound by the acts of its solicitor. Baker, making its legal effect somewhat different.
II. One M. M. Baker, was a local solicitor for the defendant society, residing at Fairfield, Iowa and he solicited the application for the policy in question. The society had an office at Des Moines, Iowa and one L. B. Durstine seems to have been manager at that office. Baker's appointment as solicitor, came through Durstine, and the reports and correspondence were to and with that office. The particular facts as to the premiums paid, for which the policy issued, are that Baker agreed with plaintiff that the three first annual payments could be made at once, and that for two hundred dollars of the amount he would take a horse, buggy, and harness; and the premium was so paid, the horse, buggy, and harness being kept by Baker, and a part of the money paid to the society. It seems to us that the fact is not to be doubted that Durstine was, as to the society, its recognized manager for Iowa with his office in Des Moines. The printed annual statement of the society for December 31, 1890, which gives the names of the officers of the society, such as president, vice-president, and directors, includes the name of "Lee B. Durstine, Manager for Iowa 60 to 64 Clapp Block, Des Moines, Iowa." The receipt for the money is signed by W. Alexander, secretary, and countersigned by Durstine, as manager for Iowa. It is sufficient to say that the record shows that Durstine was manager for Iowa in the sense that he was the company's general agent. The office in Des Moines was a branch office, through which the business in this state was done. This is said in view of a controversy as to the admission of evidence to show the agency of Durstine and Baker by the records in the office of the auditor of state. We think the fact of the agency of both Durstine and Baker appears, independent of such evidence, and it is not important that we pass upon the particular questions presented. The case was determined by the district court on the undisputed facts, and such facts show the agencies, as we have stated, independent of the evidence from the auditor's office. With this view, there could have been no prejudice from the rulings, in any event.
III. Appellant argues an assignment of error as to the refusal of the court to direct a verdict in its favor at the close of plaintiff's evidence. This is so intimately connected with the action of the court in directing a verdict for the plaintiff, that our considerations may involve the entire record as to plaintiff's right to recover. It may be conceded that Baker was a mere soliciting agent, authorized to receive applications and forward them; to receive only the first annual premium, unless upon a receipt from the office in New York, signed by an officer, and countersigned at the office in Des Moines, or, for that matter, without being countersigned; that he had no right to receive payment of any premium except in money; and that, at the taking of the application, he had authority to receive only the amount of one annual premium. These concessions, for the purposes of the case, render it unnecessary to consider some points argued, and bring us more directly to what appear to be controlling questions. We have stated our conclusion as to the character of the agency at Des Moines. It will be necessary to set out some of the documentary proofs, as in no other way can their effect be well understood. The following is the receipt--called a "binding receipt"--given when the application was taken and the premium paid The record shows some alterations of the receipt as above set out, as that the word "note" in some places was erased, and the word "cash" written over it, and other changes made to make it conform to the facts of the three premiums being paid in cash, instead of a note taken for one annual premium. The words, "L. B. Durstine, Mgr., Des Moines, Iowa" and "J. H. Sarles, Cashier," are placed on the receipt by the use of a hand stamp. It will be seen that this receipt purports to come from its agency at Des Moines, Iowa and from the manager of its business. It may be conceded that the change in the receipt, by which three years of premiums were included instead of one, was done by Baker after he received the blank receipt, and that, but for other facts, the receipt would be of slight importance, if any, in this connection. It will be noticed that the receipt is dated September 19, 1891. October 30, 1891, and after the receipt of the policy, plaintiff wrote Mr. Durstine as follows: ...
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