(Syllabus by the Court.)
1. Held that, under the facts of this case, the jury would have been justified in finding that, by reason of certain misrepresentations and unauthorized acts of the defendant insurance company (especially in demanding of the insured payment of an assessment in addition to his premiums), the insured was misled and induced to refrain from paying the premiums which he otherwise would have paid.
2. Held, also, that this would be sufficient ground to entitle the insured, if living, to have his policy reinstated, or, if dead, to entitle the beneficiary to recover on it upon payment of all premiums due.
3. Certain statements of an agent of the defendant held inadmissible, because not within the scope of his agency.
4. An instruction to the jury that, if the assessment was illegal, this would be sufficient excuse for the nonpayment of premiums, held erroneous, because it omitted other facts essential to a valid excuse.
Appeal from district court, Houston county; John Whytock, Judge.
Action by Laura A. Colby against the Life Indemnity & Investment Company. Judgment for plaintiff. From an order refusing a new trial, defendant appeals. Reversed.
The following are Exhibits A and B, referred to in the opinion:
“Exhibit A. Incorporated July 20, 1881. Reorganized Oct. 10, 1881. In Union There is Strength. The Union Mutual Aid Association of Waterloo, Iowa. No. 3,741. Age, 41. This certificate of membership witnesses and declares that in consideration of the application for this certificate of membership, and of each of the statements made therein, and in further consideration of the payment of the sum of twelve dollars at the office of the association in Waterloo, Iowa, at the date hereof, the receipt whereof is hereby acknowledged, and of the semiannual payment of two dollars and fifty cents, to be made at said office on or before the first day of April and October in every year during the continuance of this contract, and of the prompt payment of such benefit assessments as may be legally levied by its board of directors, the Union Mutual Aid Association issues this certificate of membership, and constitutes Herman Colby, of Rushford, county of Fillmore and state of Minnesota, a member of said association with all the rights and privileges thereof, subject to the following conditions and agreements and the provisions of its by-laws: Upon the receipt at the Waterloo office of satisfactory proofs, on blanks furnished by the association, of the death of Herman Colby, this association will pay to his wife, Laura A. Colby, if living,-if not living, to the legal heirs or assigns of said Herman Colby,-the net proceeds of one full assessment, at schedule rates, upon all the members in good standing at the date of said death, to an amount not exceeding twenty-five hundred dollars, to be paid within sixty days after the filing of said proofs. Provisions and requirements of the endowment: First. The endowment period of this certificate shall be completed on the 30th day of December, in the year 1892. Second. That, previous to the completion of the endowment period, this certificate shall have no surrender value. Third. That all surplus derived from death or special assessments and such members as shall not complete their endowment period shall be apportioned equitably among such members as shall complete their endowment period. Fourth. That upon the completion of the endowment period, providing this certificate shall not have been terminated previously by lapse or death, the legal holder or holders of this certificate shall surrender the same to the association, and receive the sum of one thousand dollars from the surplus fund. Fifth. If the surplus apportioned to this certificate is not sufficient to pay the one thousand dollars, a special two-fifths assessment at schedule rates shall be made upon all the members in good standing at date of said surrender, and the said holder or holders shall receive the proceeds, together with the surplus apportioned to this certificate, not exceeding one thousand dollars. Special conditions: A written or printed notice mailed to the address of a member, as it appears on the books of the association at that date, shall be deemed a legal notice. Prompt notice must be given the association, in writing, by any member who shall change his or her residence, post-office address, occupation, or name. The association may classify its membership for the purpose of assessment when it shall appear expedient, in which case members shall only be assessed to pay benefits in their own class. This certificate shall be void-First. If the amount of any assessment made under this certificate is not received at the Waterloo office within thirty days from date of notice thereof. Second. In case dues are not paid on or before the day when due as above stated. Third. If the member shall use alcoholic liquors, so as to impair his or her health, or produce delirium tremens, or cause his or her death; or if the member shall have concealed or misrepresented any material facts as to his or her health or circumstances. The following are the schedule rates referred to above, on which assessments are based: From 18 to 30 years of age, $1.00; from 31 to 40 years of age, $1.25; from 41 to 50 years of age, $1.50; from 51 to 55 years of age, $1.75; from 56 to 60 years of age, $2.00. All the above ages are inclusive. In witness whereof, the Union Mutual Aid Association has hereunto affixed its corporate seal, and caused this certificate to be signed by its president and secretary, at its principal office, in Waterloo, Iowa, this 30th day of December, A. D. 1882. [Seal.] Matt Parrot, President. C. E. Mabie, Secretary.”
“Exhibit B. Supplementary Contract to Certificate No. 3,741. The Life Indemnity and Investment Company (formerly the Union Mutual Aid Association), in consideration of the payment of three dollars and ninety-five cents, at the office of the company in Waterloo, Iowa, the receipt whereof is hereby acknowledged, does hereby promise to pay to the beneficiary named in certificate No. 3,741 (which will hereafter be called ‘policy’) the sum of twenty-five hundred dollars within the time specified in said policy, proofs of death having been furnished in accordance with the terms thereof; providing the death of the insured under said policy occur before twelve o'clock noon on the first day of January, A. D. 1887, or during any continuance of this insurance; and the said company further agrees to continue this insurance during each successive month from the above date, upon condition that the insured shall pay, or cause to be paid, on or before the 1st day of each month, in each successive year, during the continuance of said policy, the premium opposite the nearest even age of the insured at the time of such renewal, as specified in the table of rates printed hereon; such premiums to be paid at the said office, or at such other place as the company may designate, the payment of said premiums beingthe consideration for said renewal or continuance of the insurance. If this policy should not be renewed at the end of any term for which premiums have been paid, it may be renewed within sixty days thereafter, upon the insured furnishing a certificate of health from an accredited medical examiner of this company, which shall be satisfactory to and accepted by the medical director of said company, with the payment of the proper premiums. Should the death of the insured under said policy occur two or more years after its date, the conditions herein as to the payment of premiums having been complied with, said policy is hereby declared to be indisputable...
