Fleming v. Fleming

• Decision Date: 28 September 1921
• Docket Number: No. 32408.,32408.
• Citation: 194 Iowa 71,184 N.W. 296
• Parties: FLEMING v. FLEMING ET AL.
• Court: Iowa Supreme Court

194 Iowa 71

184 N.W. 296

FLEMING

v.FLEMING ET AL.

No. 32408.

Supreme Court of Iowa.

Sept. 28, 1921.

Appeal from District Court, Polk County; C. A. Dudley, Judge.

On second rehearing. Former opinions and decree in court below modified. For former opinions, see 174 N. W. 946;180 N. W. 206.A. B. Cummins, Parrish, Parker & Miller and W. E. Miller, all of Des Moines, for appellants.

Parsons & Mills, of Des Moines, for appellee.

EVANS, C. J.

It is to be conceded that our former opinions (174 N. W. 946, 180 N. W. 206) are incomplete in their discussion, in that the item of “life insurance” is not considered therein. It is a matter of some doubt whether the pleadings make any issue as to such item. The only reference thereto in the petition of plaintiff is contained in paragraphs 6 and 11. Paragraph 6 was as follows:

“That plaintiff's deceased husband carried life insurance in the amount of $58,000.”

Paragraph 11 averred that the three defendants had collected such life insurance, and appropriated the same to their own use. It was not alleged that the plaintiff was the beneficiary of the policy; nor was any other fact pleaded as a basis for the claim that the insurance proceeds belonged to her either in whole or in part. The trial court filed a lengthy written opinion in the case, comprising apparently a complete discussion of all points presented for his consideration. No reference is made therein to the item of insurance. The opening argument of plaintiff as appellee purports to be a full discussion of the case, but no reference is contained therein to the insurance. However, the decree entered by the trial court did in terms declare the insurance proceeds to be a part of the partnership property. The implication from such finding would naturally be that the plaintiff was entitled to recover the one-eighth part thereof. The only disclosure of the detailed facts pertaining to such insurance is to be found in the answer of the defendants, appellants here, and in the evidence in their behalf. It is to be said also that the appellants made proper point in their opening argument here, calling in question that feature of the decree entered below. It is true that the basis of their claims of right to such proceeds which was put forth by them with greatest emphasis was the contract which we have already considered in our former opinions, and which we hold to be ineffective as a bar to the widow. But they did base their claims of right also upon other grounds which we here consider. If the item had not been specified in terms in the decree, we should be inclined to hold that it was not within any material issue tendered by the petition. Inasmuch as the decree did specifically purport to adjudicate it, the appellants are entitled to demand our consideration of it in a specific sense.

[1][2] The undisputed facts as they appear from the pleadings and the evidence of the defendants are that the “life insurance” in question was payable to the three brothers, appellants herein. It appears that similar insurance was carried upon the life of each member of the firm in favor of the other three members thereof. The undertaking of the insuring company was to pay the death loss upon any life to the other three members of the firm. Such form of insurance was legitimate. Each member of the firm had an insurable interest in the life of every other The expense of the insurance was borne by the beneficiaries. It appears also that the insuring company held all these policies as...