Anderson v. Highlanders
| Decision Date | 18 May 1923 |
| Docket Number | 34820 |
| Citation | 193 N.W. 640,195 Iowa 1252 |
| Parties | HANNAH ANDERSON, Appellee, v. ROYAL HIGHLANDERS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--JAMES W. WILLETT, Judge.
ACTION to recover upon a certificate of insurance issued by defendant to John J. Anderson, in which certificate plaintiff was named as beneficiary. Issue was made in the original case by plaintiff, claiming $ 2,000 on the certificate, defendant claiming that insured was a suicide, and that the defendant's liability was only the amount of the assessments paid by insured. The case was assigned for trial and when it was reached for trial, defendant failed to appear, and the trial proceeded to a jury. Plaintiff introduced evidence, and the court, on motion of plaintiff directed verdict in her favor, and judgment was entered on the verdict for the full amount of the policy. Later, at the same term, defendant moved to set aside the verdict and judgment, and plaintiff resisted the motion. The motion was overruled, from which ruling this appeal is taken. Facts appear in the opinion.--Reversed and remanded.
Reversed and remanded.
Hainer Craft & Lane and C. H. Van Law, for appellant.
E. N. Farber and H. H. Craney, for appellee.
The petition alleged that plaintiff was the mother of John J. Anderson; that, about April 1, 1909, John J. Anderson became a member of the defendant association, and remained such member until about the 20th of August, 1919, when his death occurred; that there was issued to John J. Anderson a certificate of membership; that said certificate provided that $ 2,000 would be paid to Hannah Anderson, mother of insured, upon satisfactory proof of death of insured; that proof of death was made. Plaintiff attached to her petition a copy of the certificate sued on. Among other things, the certificate provided that:
"In case of suicide of the member, either sane or insane, the amount of all contributions of the member to the fidelity fund of the fraternity only shall be paid to the beneficiary named in this certificate."
On September 4, 1920, defendant filed answer, admitting the allegations of the petition as to its organization and the transacting of the business of insurance, and the issuance of the certificate and acceptance; that plaintiff was the beneficiary named in said certificate; that due proof of death of said John J. Anderson had been made; that defendant had in its possession in the fidelity fund, money sufficient to pay the claim of plaintiff. The answer denied other allegations of the petition. As affirmative defense, defendant alleged, among other things, the application for membership and issuance of the certificate and the conditions and obligations of the insured, and insured's statements and answers to questions in such application; that, among other things, it was agreed by insured in such application that:
"I also agree that, should I commit suicide after my admission into the fraternity, whether sane or insane, that this contract shall be null and void and of no binding force upon said Executive Castle; except that I agree that all payments made by me which have been placed in the fidelity fund shall be accepted in full payment of all benefits to my beneficiary or beneficiaries, and that payment of same by the Royal Highlanders shall cancel all claims whatsoever."
Defendant further alleged that the laws and edicts of the defendant society were made a part of the contract of insurance, and were accepted by the insured, which laws and edicts contained, among other things, the provision that: "The benefit certificate issued to a member shall become void and all benefits thereunder shall be forfeited in case the member shall die from suicide, felonious or otherwise, sane or insane."
Defendant further alleged that plaintiff had duly made and presented to defendant proof of death of insured under said certificate sued on, in which said proof it was stated:
Defendant further alleged that it received said proof, "being the same proofs mentioned and referred to in the petition of the plaintiff, and acted thereon; that on such action it duly allowed to the plaintiff the sum of $ 107.70, and being the full amount of the payments made by the said John J. Anderson to the fidelity fund of the defendant, and it thereupon issued to the said plaintiff an order on its chief treasurer for said amount, to wit, $ 107.70, so due thereon, which said order was by the said plaintiff refused."
Defendant continued the tender made to plaintiff by paying $ 107.70 into court for the benefit of plaintiff.
On the 5th day of April, 1921, plaintiff filed reply, denying the allegations of the answer, except such as are admissions of allegations in the petition or are specifically admitted. Further replying, plaintiff alleged:
"That if, in the proof of death of the insured, it was stated that the death resulted from suicide, such statement was made erroneously, inadvertently, and under misapprehension of the real facts; that, if such statement was made, it was the statement of an erroneous opinion had at that time; that, if such statement was made, it was a mistake; that death was not the result of suicide."
Such was the state of the pleading when the case went to trial, in the absence of anyone representing defendant, on April 5, 1921.
The petition was filed on August 17, 1920, the answer on September 4, 1920, and the reply on the day of trial, April 5, 1921. On April 18, 1921, defendant filed motion, supported by affidavits, to set aside the verdict and judgment entered thereon, on the grounds:
(1) That the cause was not at issue at the commencement of the term, and was not at issue at the time the case was assigned for trial, and no assignment for trial was made after the issues were made up.
(2) That the petition was filed on August 26, 1920, and the answer filed on September 4, 1920; that the answer affirmatively alleged facts constituting a legal defense to the cause of action alleged in the petition; that no further pleadings were filed by plaintiff until the plaintiff replied on April 5, 1921, thus for the first time joining issue with defendant upon the allegations of its answer; that, upon filing of said reply, on the same day, said case was immediately called for trial, and the verdict directed in favor of plaintiff, without any notice to defendant, and in the absence of any counsel representing or having any notice of said proceedings.
(3) That the defense set up in the answer was made in good faith, with the purpose of trial upon the issues presented.
(4) That neither defendant nor its officers or counsel had knowledge that the reply had been filed, and that the case was thereby made at issue, or that the case had been assigned for trial, until the 7th day of April, 1921.
(5) That E. J. Hainer, of the firm of Hainer, Craft & Lane, of Lincoln, Nebraska, was the general counsel for defendant, and had sole charge of the defense of this case; that the answer was forwarded by E. J. Hainer to the clerk of the district court of Marshall County on the 3d day of September, 1920 accompanied with a request that the said clerk advise him as soon as any reply or other pleading was filed; that Hainer received from said clerk on September 4, 1920, acknowledgment of his letter and receipt of the answer, with the statement that he, the clerk, would endeavor to keep counsel posted as to any further action that might be taken; that, in the absence of any notice from said clerk or otherwise that the reply had been filed, that said case was at issue, or that said court was in session, or that said case had been set down for trial, counsel assumed and believed that nothing had been done, and that no immediate action was contemplated therein; that no further word regarding said case was received by Hainer, until after said cause had been called for trial and the verdict rendered, in his absence and without any knowledge on his...
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