Gongower v. The Equitable Mutual Life & Endowment Ass'n

• Decision Date: 15 May 1895
• Citation: 63 N.W. 192,94 Iowa 499
• Parties: ABBIE CONGOWER v. THE EQUITABLE MUTUAL LIFE AND ENDOWMENT ASSOCIATION, Appellant
• Court: Iowa Supreme Court

63 N.W. 192

94 Iowa 499

ABBIE CONGOWER v. THE EQUITABLE MUTUAL LIFE AND ENDOWMENT ASSOCIATION, Appellant

Supreme Court of Iowa, Des Moines

May 15, 1895

Appeal from Black Hawk District Court.--HON. J. L. HUSTED, Judge.

Action at law to recover an endowment upon certificates in the defendant association. The lower court overruled a demurrer to the plaintiff's petition, and rendered judgment against defendant for the sum of one thousand dollars, and defendant appeals.

Reversed.

J. J Tolerton and Boies, Couch & Boies for appellant.

Rickel & Crocker and Alford & Gates for appellee.

OPINION

Deemer, J.

The petition alleges, in substance, that in January, 1882, the defendant issued to plaintiff a certificate of membership, in which it agreed to pay, in case of death, the proceeds of one full assessment, not exceeding two thousand five hundred dollars, and, as an endowment, the following: "Endowment Claim. Upon surrender of this certificate by the aforesaid member or a legal holder, after having been kept in force for a period of ten full years, the Equitable Mutual Life and Endowment Association will pay to said member or legal holder his full share of the endowment fund of said association, not exceeding one thousand dollars; it being hereby declared to be the design and purpose of this association to provide the full sum of one thousand dollars for each matured certificate." That in January, 1884, at defendant's request, she surrendered her certificate, and was induced to accept another of like import under date of January 18, 1884. That, at the time she became insured in the defendant company, it was represented to her, by the association and its agents, that if she would keep the same good by paying all assessments and dues, and should survive for ten years she would be entitled to receive from the company the sum of one thousand dollars. That, relying upon such statements and representations, she accepted the certificates, and has paid all dues and assessments thereon. That she did not know defendant would not pay the one thousand dollars endowment until March, 1892, when she was so informed by its officers. That she made demand of defendant for the one thousand dollars endowment in October, 1892, which was refused. And she asks judgment for one thousand dollars, which she alleges is her due from the endowment fund. On the back of the policy was the following: "Register date of membership, January 1, 1882," and the following, printed in large letters and figures, to-wit:

"Insurance

$ 2,500.00

Endowment

$ 1,000.00"

The defendant first moved the court to strike out all the allegations as to statements made by the company or its agents relating to the effect of the contract, and, its motion being overruled, it then demurred to the petition upon the grounds: First. That the petition shows that plaintiff is entitled to recover, if at all, her share only of the endowment fund, not exceeding one thousand dollars and that it fails to show that the association has any endowment fund, and fails to show what her share of the fund is. Second. That it fails to show that any fraud was perpetrated upon plaintiff, and fails to show any damage, if fraud were pleaded. Third. The petition shows that all the alleged representations were merged in the written contract, and such representations afford no ground for relief. Fourth. The petition shows that plaintiff was fully advised of the terms of the contract, or, if not so advised, that she was negligent in not learning them. Fifth. That the alleged representations were made at or about the time of the making of a certain contract in writing, which is not the one sued on, and that the one sued was made and accepted by plaintiff in lieu of the original, and that the representations constituted no part of the one sued on, and did not induce the acceptance thereof. This demurrer was overruled, and, the defendant electing to stand thereon, judgment was rendered against it for the sum of one thousand and ninety-one dollars and sixty-seven cents, with costs. This ruling is the subject of several assignments of error which fairly present the question as to plaintiff's right to recover, under the allegations of her petition.

The petition is a peculiar one. As we understand it, the action is predicated upon the certificate issued by the defendant company on the eighteenth day of January, 1884. This must be so, because it is expressly alleged that plaintiff surrendered her first certificate, and was induced to accept another in lieu thereof. This appears to have been a voluntary relinquishment of all claims under the first certificate. It is not claimed that any fraud was practiced to induce her to surrender it, nor is there any attempt to reform either of the contracts. The action is not bottomed upon an oral policy of insurance. Moreover, if it were, the petition shows that the oral contract was merged into written ones, and no attempt is made to set either one aside. Nor is the action based upon fraud or false representations. Recovery, then, must be upon the agreements contained in the second certificate, if it can be had at all. The promise therein stated is "to pay said member or legal holder his full share of the endowment fund of said association, not exceeding one thousand dollars; it being hereby declared to be the design and purpose of this association to provide the full sum of one thousand dollars for each matured certificate." As we have seen, the action is upon the second certificate, and it is...