Fleming v. Merchants' Life Ins. Co., 33545.

• Decision Date: 16 December 1920
• Docket Number: No. 33545.,33545.
• Parties: FLEMING v. MERCHANTS' LIFE INS. CO.
• Court: Iowa Supreme Court

180 N.W. 202

FLEMING

v.MERCHANTS' LIFE INS. CO.

No. 33545.

Supreme Court of Iowa.

Dec. 16, 1920.

Appeal from District Court, Polk County; Thomas J. Guthrie, Judge.

Action at law to recover $2,000 under a contract of insurance or certificate of membership issued by the defendant company to one Michael Fleming. Plaintiff was the wife of insured, and named as beneficiary. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals. Affirmed.

Evans, J., dissenting in part.S. E. Knappen, of Grand Rapids, Mich., and Brammer, Seevers & Hurlburt, of Des Moines, for appellant.

Nourse & Nourse, of Des Moines, for appellee.

PRESTON, J.

The certificate of membership was issued February 6, 1908. The premiums or dues were promptly and fully paid down to the time of the commencement of this action. The insured at times used intoxicating liquors to excess, and about a month after the certificate was issued, and while under the influence of liquor, destroyed the certificate. The jury could have found that the defendant was notified of the destruction of the certificate, and the defendant's agent advised that the payment of premiums be continued, and that they were continued thereafter with the knowledge of, and with money furnished by, insured, down to the time he disappeared. The payments were thereafter kept up until the bringing of this suit, as stated. The suit was brought August 4, 1919. In the fall of 1911 insured commenced talking with his wife and family of going to Canada, to get away from his associates with whom he had been drinking. He did go to Canada in April, 1912. About a week thereafter he wrote his wife from McDonald, Saskatchewan, addressing his letter, “Dear Wife and Family,” saying that he was going to work, was lonesome for his family, and as soon as he got settled he would send his wife some money, signing the letter, “from your dear husband.” The wife answered the letter in like terms. After waiting several weeks, and not hearing again from her husband, she wrote to chief of police at McDonald, who answered that he had sent out his men, and made every effort to find insured, but that he could not be found. Soon thereafter plaintiff notified defendant's fiscal agent, to whom payments of premiums had been and were thereafter made, of her husband's disappearance, and that she had written the chief of police, and the response thereto, and that the agent advised her to keep up the payments. Subsequently, and about a year prior to the suit, plaintiff again notified the officer of the defendant company and its officer in Des Moines of her husband's disappearance, and said officer said he knew it. May 20, 1919, plaintiff made to defendant, under oath, formal proof of the disappearance and death of insured. The evidence shows the harmonious relations existing between insured and his wife, his habits, and the efforts to locate him. Defendant in argument suggests that the efforts made were not sufficient, but we think there was enough to go to the jury, and to authorize a finding that the insured was presumed to be dead because of more than seven years' absence. Appellant did not rebut the presumption, and does not claim that the insured is in fact alive. Indeed, appellant states that the only question involved is whether a provision in the by-laws and certificate is valid or otherwise. In March, 1902, the Merchants' Life Association regularly adopted the following by-law:

“Disappearance or long-continued absence of the member, unheard of, shall not be regarded as evidence of death, or of any right to recover.”

The defendant company continued as the Merchants' Life Association until it was changed to its present name in 1915. The certificate issued to Michael Fleming commences as follows:

“This is to certify that in consideration of the articles of incorporation and by-laws of the Merchants' Life Association, of Burlington, Iowa, * * * a copy of which is hereon indorsed and all of which is made a part of this contract. * * *”

Printed on the certificate were certain by-laws, among them the one above quoted. The certificate was accepted by the insured, and retained until it was destroyed as before stated. Insured did not make any attempt to secure a duplicate policy, but, as said, the assessments were paid under the circumstances and in the manner before stated. Appellee makes some question as to whether, the certificate having been destroyed, defendant established its contention that the certificate contained the provision as claimed. They appear to make no serious contention, however, and we think the evidence was sufficient to establish the fact. No question is made but that the by-law was passed, and prior to the issuance of the certificate. We take it that the trial court held, as matter of law, that the provision of the by-law and certificate before referred to was invalid. That issue was not submitted to the jury, but the court did instruct in regard to the presumption from seven years' absence or more. As said, the only proposition argued by appellant is in regard to the validity of the by-law in question. It contends that the by-law and the certificate embodying the same are valid and binding. Appellee contends otherwise, and, further, that the provision in question is to be construed most strongly against the insurer, and that the language in the certificate should be given that common signincance which an ordinary man would place upon the terms used. As to the claim of appellee that the language used by the company is ambiguous, there seems to be no dispute between counsel as to the rule. Appellee's contention is that, properly construed, the meaning of the language here under consideration is that it was the purpose of the parties that a reasonable length of absence, unheard of, only was intended, and not, as appellant's argument implies, that if insured was never heard from, yet such disappearance and continued absence could not be introduced in evidence, or considered to prove death. It is argued, too, that the writer of the by-law and certificate only intended to release the insurer from liability where the evidence of death was a disappearance and continued absence for a less period than seven years, the period which gives rise to the presumption of death, and that nothing more was intended. We have held that in some cases the circumstances may be such as to warrant the inference of death where the absence is for a less period than seven years. Tisdale v. Insurance Co., 26 Iowa, 170, 176, 177, 96 Am. Dec. 136; In re Estate of Barrett, 167 Iowa, 218-222, 149 N. W. 247.

Appellee's thought is that the company, in using such language, intended only to evade or modify the holding in the Tisdale Case. But we agree with counsel for appellant that the language is not ambiguous, and that it means just what it says. In some of the cases the contract provides substantially that evidence of absence may not be considered to prove death until the expiration of the life expectancy of insured. In the instant case there is no time limit whatever. The plaintiff could continue to pay assessments, with the knowledge of the company, for 100 years, or indefinitely, and yet, in the language of the by-law and contract, such long-continued absence of the member, unheard of, shall not be regarded as evidence of death, or, still in the language used, “of any right to recover.” In the absence of such a provision, or possibly a statute on the subject, such evidence is so generally held to be competent that citation of authority is unnecessary. But see Tisdale Case, supra, 26 Iowa, 177; Haines v. Modern Woodmen, infra, 178 N. W. 1013.

The effect of the provision in question, if it is valid, is that, unless plaintiff is able to prove that insured is actually dead, plaintiff may not even introduce evidence, and she is absolutely precluded from a recovery, and may not even maintain a suit, because there could be no way of proving death. The courts could not even hear the case, and would therefore be ousted of their jurisdiction. The certificate would be rendered worthless, and worse than worthless, because the beneficiary paying the assessments would lose the amount paid. The very purpose of the insurance--the promise to pay indemnity--would be nullified. Appellee cites the following cases on the proposition that absence unheard of for seven years raises a presumption of death: Tisdale v. Insurance Co., 26 Iowa, 176, 96 Am. Dec. 136; Seeds v. Grand Lodge, 93 Iowa, 177, 61 N. W. 411; Sherod v. Ewell, 104 Iowa, 255, 73 N. W. 413; Smith v. Fuller, 138 Iowa, 96, 115 N. W. 912, 16 L. R. A. (N. S.) 98;Oziah v. Howard, 149 Iowa, 201, 128 N. W. 364;Carpenter v. Modern Woodmen, 160 Iowa, 608, 142 N. W. 411; Supplement to Code, § 3307. See, also, Haines v. Modern Woodmen, 178 N. W. 1010. And further that the general rule is, under such circumstances, the burden is upon the insurer to show that insured is still alive, citing Rosencrans v. Modern Woodmen, 97 Neb. 568, 150 N. W. 630;Magness v. Modern Woodmen, 146 Iowa, 5, 123 N. W. 169.

These rules are not controverted by appellant, but they say that the effect of the language used in the by-law is to set aside a rule of evidence, and that this is competent. On this point they cite: A contract setting aside a rule of evidence is valid. Roeh v. Business Men's Prot. Ass'n, 164 Iowa, 199, 145 N. W. 479, 51 L. R. A. (N. S.) 221, Ann. Cas. 1915C. 813; Lundberg v. Interstate Business Men's Acc. Ass'n, 162 Wis. 414, 156 N. W. 482, Ann. Cas. 1916D, 667; Moses v. Ill. Comm. Men's Ass'n, 189 Ill. App. 440;Kelly v. Supreme Council, 46 App. Div. 79, 61 N. Y. Supp. 394;Metropolitan Life v. Willis, 37 Ind. App. 48, 76 N. E. 560;Keller v. Home Life Ins. Co., 95 Mo. App. 627, 69 S. W. 612;Russ v. Steamboat War Eagle, 14 Iowa, 363. They also cite the following cases to sustain their proposition that such a provision, being in force at the time the insured became a member,...