Fairgrave v. Ill. Bankers' Life Ass'n of Monmouth
| Decision Date | 09 December 1930 |
| Docket Number | No. 40373.,40373. |
| Parties | FAIRGRAVE v. ILLINOIS BANKERS' LIFE ASS'N OF MONMOUTH, ILL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; O. S. Franklin, Judge.
In an action brought by plaintiff (appellee), as executor of the estate of Maria Fairgrave, deceased, against the defendant association for recovery of total and permanent disability benefit under an insurance policy issued by defendant to the deceased, a jury having been waived, the trial court entered judgment against the defendant association. The defendant appeals.
Reversed.
Henry & Henry, of Des Moines, for appellant.
Bradshaw, Schenk & Fowler and D. J. Fairgrave, all of Des Moines, for appellee.
DE GRAFF, J.
This action was tried to the lower court (a jury having been waived by the parties) largely on a stipulation of facts including the following:
That appellant association issued its certificate of membership to the deceased, Maria Fairgrave, under date of November 3, 1910, and which certificate, by its terms, made the by-laws of the association a part thereof. (Copies of the certificate and the by-laws material to the action were introduced in evidence.)
That the calls or premiums on such certificate were payable quarterly and pursuant to notice sent out by said association.
That each and every premium called for on such certificate up to and including July 1, 1926, had been duly paid to the association.
That on or about September 1, 1926, a quarterly premium or call was legally made by the appellant on the certificate held by the said Maria Fairgrave, and that the notice thereof was duly mailed to her at her last post office address known to appellant association.
That such premium call was due October 1, 1926, and was not paid by the insured nor by any one in her behalf, and that no tender of any such premium call on such certificate had ever been made to the appellant.
That on or about September 6, 1925, said Maria Fairgrave suffered a stroke of paralysis and thereupon became totally and permanently disabled.
That the first notice of such disability was had by appellant association on or about July 15, 1927, through a letter written by a daughter of the insured, and that a second notice was received from the legal guardian of such Maria Fairgrave on or about September 19, 1927; both letters being introduced on the trial.
That appellant association received no further proofs of total and permanent disabilityand that no demand for blanks upon which to make such proofs was made upon appellant.
That appellant wrote a letter, dated October 18, 1927, refusing to honor any claim under said certificate.
That the action was commenced on April 18, 1929.
That the exhibits referred to in such stipulation might be introduced in evidence.
The appellee's evidence, in addition to the stipulations and exhibits referred to therein, consisted of the testimony of two witnesses. The appellant, as defendant, offered no evidence except the stipulations and the exhibits referred to therein, making, however, an objection to the declaration contained in Exhibit 3 as incompetent and hearsay and not binding upon appellant. In rendering its judgment against the appellant, the learned trial court afforded no assistance to this court by stating the grounds upon which the verdict or judgment was rendered.
[1] I. It appears conclusively from the testimony, which was not contradicted by appellant, that Maria Fairgrave, the insured, suffered a paralytic stroke on September 5, 1925, which rendered her totally and permanently disabled, within the meaning of the provisions of the certificate issued to her, and which also resulted in said insured becoming mentally incompetent soon thereafter. After being so stricken, she was taken to the home of her daughter, Mrs. Thompson, where she remained until the month of April, 1926, when she was taken to the home of another daughter, where she remained until the month of November, 1927, from whence she was removed to Mrs. Thompson's home in Valley Junction, Iowa, where she remained until her death in September, 1928. It appears that the deceased continued to be totally and permanently disabled and mentally incompetent until her death. Mrs. Thompson testified that she paid the premium calls upon her mother's certificate in the appellant association until in October, 1926. No question has been raised as to the lapsing of said certificate by reason of the nonpayment of the October, 1926, premium call, and no claim is here being made for any death benefit under such certificate. The certificate of membership provided:
There is sufficient evidence to sustain the finding that Maria Fairgrave did become totally and permanently disabled within the meaning of the certificate. It will be noticed that if such a condition arose, “one-half of this Certificate shall be paid on due proof thereof and the remainder shall be paid at death.” No claim has been made in this action for the death benefit. The “one-half” involved here was to be paid upon due proof that the condition insured against, to wit, became permanently and totally disabled, had occurred while the certificate was in full force and effect.
It is presumed, in the absence of anything to the contrary, that the total and permanent disability benefit was payable to the insured upon due proof thereof in accordance with the provisions. It is to be observed that in event of nonpayment of premium calls within the time provided that the membership was to be forfeited and all rights to share in the funds and property of the association ceased absolutely.
[2][3][4] II. The by-laws of the appellant association, which were made a part of the certificate of membership issued to the deceased and which have not been attacked by appellee as invalid in any way, provide, inter alia:
“In the event of any certificate of membership or policy of insurance issued by this Association becoming a claim against the Association by reason of the death or total and permanent disability of any member or policy holder satisfactory proofs shall be furnished upon blanks provided by the Association within ninety (90) days after the death of said member or policyholder, or the happening of the total and permanent disability as provided in said certificate or policy of insurance, or claim on account of the death or total and permanent disability of any certificate or policyholder or beneficiary thereof shall be forfeited by failure to furnish the proofs within the time and in the manner above provided.”
It is conceded by the parties that no proofs of the total and permanent disability of Maria Fairgrave were furnished the association within ninety days of the commencement of such disability or at any other time, and, furthermore, that the first notice of such disability was given the association in a letter written under date of July 15, 1927, by one of the beneficiaries named...
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