Kirkpatrick v. London Guarantee & Accident Co.

• Decision Date: 11 April 1908
• Citation: 139 Iowa 370,115 N.W. 1107
• Parties: KIRKPATRICK v. LONDON GUARANTEE & ACCIDENT CO., LIMITED.
• Court: Iowa Supreme Court

139 Iowa 370

115 N.W. 1107

KIRKPATRICK

v.LONDON GUARANTEE & ACCIDENT CO., LIMITED.

Supreme Court of Iowa.

April 11, 1908.

Appeal from District Court, Poweshiek County; Byron W. Preston, Judge.R. J. Folonie, Carr, Hewitt, Parker & Wright, and Will C. Raybourn, for appellant.

Norris & Norris and W. R. Lewis, for appellee.

McCLAIN, J.

On January 5, 1906, the defendant company issued to the plaintiff a policy of insurance for one year, providing that, for loss of life on account of bodily injury effected directly and independently of all other causes through external, violent, and accidental means, the company would pay to plaintiff $20,000, and for loss of either hand by severance, etc., one-half of that sum. Plaintiff's claim was for $10,000 on account of the loss of a hand, within the terms of the policy, and $50 under a provision for the payment of that amount in addition for an amputation. The defenses relied upon were that the policy was procured with the fraudulent purpose of cheating the defendant by voluntarily bringing about his injury so as to secure the indemnity provided for; that the injury for which recovery was sought was not accidental, but was voluntarily and intentionally self-inflicted; and that certain material statements and warranties on the part of the insured were false, and that the policy was by its terms void on account of such false statements and warranties. The court submitted to the jury the issues raised by the pleadings as to the alleged fraud in the procurement of the policy and as to whether the injury was accidental or self-inflicted, but by various rulings in striking out portions of defendant's answer, in refusing instructions asked, and in withdrawing certain issues remaining under the pleadings from the consideration of the jury, held that the falsity of statements and warranties on the part of assured found in the policy could not be inquired into, for the reason that a true copy of an application, containing statements and warranties on the part of the assured somewhat different from those found in the policy, had not been attached to such policy or indorsed thereon, as required by Code, § 1741, which under Code, § 1709, par. 5, is applicable to policies of accident insurance. The section referred to reads as follows:

“Sec. 1741. Copy of Application.--All insurance companies or associations shall, upon the issue or renewal of any policy, attach to such policy or indorse thereon a true copy of any application or representation of the assured which by the terms of such policy are made a part thereof, or of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such policy. The omission so to do shall not render the policy invalid, but if any company or association neglects to comply with the requirements in this section it shall forever be precluded from pleading, alleging or proving any such application or representations, or any part thereof, or falsity thereof, or any parts thereof, in any action upon such policy, and the plaintiff in any such action shall not be required in order to recover against such company or association, either to plead or prove such application or representation, but may do so at his option.”

The policy sued on contains the statements and warranties on the part of the assured, falsity of which is relied upon by the defendant; but it makes no reference whatever to any application as constituting the basis for the policy or a part thereof. The application, so called, which plaintiff contends is such application as should have been attached to the policy by true copy, under the section of the statute just quoted, is not in the form of an application. It is headed “Daily Report for Accident Insurance,” and purports to set out, among other things, the statements which the assured warrants to be true, and recites that “such statements are hereby made part of this contract,” and it is signed by the assured, although, as it appeared from the evidence, it was intended to be signed by the agent. But in determining the applicability of the statute we think this so-called application must be treated as an application within such statutory provisions. As counsel have presented a question as to the interpretation of the statute which can be determined without particularly reciting the allegations as to false statements and breaches of warranties under the policy itself, and as it is conceded on both sides that the solution of the question argued as to the proper interpretation of the statute will dispose of the appeal, we shall proceed at once to determine the question of interpretation thus argued.

The contention for appellee in the lower court and on this appeal is that, if representations or warranties were made in the application, a copy of which was not incorporated into or attached to the policy as required by statute, then no issue can be raised by the company as to representations or warranties found in the policy, although the policy makes no reference to such application; in other words, that although there are statements and warranties in the policy which, without reference to the application, are material to the contract, the defendant cannot raise any issue under such statements and warranties relating to the same subject-matter, a copy of which was not incorporated into or attached to such policy. The appellant, on the other hand, insists that the existence of an application, not incorporated into or attached to the policy by reference, does not preclude it from relying by way of defense on falsity of statements or breaches of warranty available to it under the policy as delivered, without reference to any application which may have been made, but which was not thus incorporated or attached. Appellant did not, as the question was finally presented in the lower court, plead or attempt to rely upon the falsity of any statements or the breach of any warranty found in the application itself, but relied exclusively upon the terms of the policy as furnishing the basis for the defenses which it interposed in this respect. The section of the Code which we are now asked to interpret has frequently been considered by this court, and has been liberally...