Fairgrave v. Illinois Bankers Life Ass'n of Monmouth, Illinois

• Decision Date: 09 December 1930
• Docket Number: 40373
• Citation: 233 N.W. 714,211 Iowa 329
• Parties: CLYDE FAIRGRAVE, Executor, Appellee, v. ILLINOIS BANKERS LIFE ASSOCIATION OF MONMOUTH, ILLINOIS, Appellant
• Court: Iowa Supreme Court

233 N.W. 714

211 Iowa 329

CLYDE FAIRGRAVE, Executor, Appellee, v. ILLINOIS BANKERS LIFE ASSOCIATION OF MONMOUTH, ILLINOIS, Appellant

No. 40373

Supreme Court of Iowa, Des Moines

December 9, 1930

Appeal from Polk District Court.--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, for appellant.

Bradshaw Schenk & Fowler and D. J. Fairgrave, for appellee.

DE GRAFF, J. MORLING, C. J., and STEVENS, ALBERT, and WAGNER JJ., concur.

OPINION

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, 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 anyone 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 5, 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 the daughter of the insured, and that a second notice was received from the legal guardian of said 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 disability, and 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.

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's 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, 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:

"If the member be permanently and totally disabled, one half of this certificate shall be paid on due proof thereof, and the remainder shall be paid at death. Upon the failure of the above-named member to pay the calls levied within the time allowed by the by-laws of the association * * * said membership shall be forfeited and all rights to any share or interest in the guarantee fund or other property of the association shall cease absolutely at the expiration of the time stipulated in which such payments are required to be made. The benefit under this contract to be paid to John Fairgrave, husband, Lucian Godwin, Anna Reid, Gennette McAvoy, Maria Aggie, Clyde and Rose Fairgrave, children, upon satisfactory proof of death to be supplied by the beneficiary and the surrender of this certificate properly receipted."

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, the membership was to be forfeited, and all rights to share in the funds and property of the association ceased absolutely.

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 policyholder 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 90 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 in the certificate. The letter reads:

"Valley Junction, Iowa,

"July 15, 1927.

"Illinois Bankers Life Association,

"Monmouth Illinois.

"Dear Sirs:

"On September 1, 1925, my mother (Mrs. John Fairgrave) was permanently disabled by a paralytic stroke. She paid her premiums for a year afterward then without telling any of us so we could help her she ceased paying for lack of funds. In reading over her policy I find there is a...