Knapp v. Brotherhood of Am. Yeomen

• Decision Date: 09 July 1908
• Citation: 117 N.W. 298,139 Iowa 136
• Parties: ELLA KNAPP v. THE BROTHERHOOD OF AMERICAN YEOMAN, Appellant
• Court: Iowa Supreme Court

117 N.W. 298

139 Iowa 136

ELLA KNAPP v. THE BROTHERHOOD OF AMERICAN YEOMAN, Appellant

Supreme Court of Iowa, Des Moines

July 9, 1908

Appeal from Linn District Court.-- HON. J. H. PRESTON, Judge.

ACTION on a certificate of insurance in the defendant association in favor of plaintiff as beneficiary on the life of her husband Frank Knapp. Verdict and judgment for plaintiff. Defendant appeals.-- Reversed.

Reversed.

Edgar C. Corry and Dawley, Hubbard & Wheeler, for appellant.

Smith & Smith and S. K. Tracy, for appellee.

OPINION

MCCLAIN, J.

The issues raised by the pleadings on the trial which resulted in the judgment in plaintiff's favor now appealed from were the same as those raised on a former trial, which resulted in a verdict and judgment in plaintiff's favor, which judgment was reversed on appeal to this court (see 128 Iowa 566), save that on the last trial the defendant by amendment to its answer alleged the failure of plaintiff to comply with a prerequisite condition to the bringing of suit on the certificate, in that she had failed and neglected to submit to arbitration the question of defendant's liability upon said certificate and her claim thereon, as required by conditions in such certificate. To this new averment on the part of defendant plaintiff replied that defendant had not asked for an arbitration or appointed any arbitrator, and that such provision with reference to arbitration was illegal and void, and the failure to procure arbitration was not a legal defense to the action. The other defenses interposed related to alleged breaches of the stipulations and conditions in the contract on which plaintiff sued consisting of the certificate and application therefor signed by Frank Knapp as applicant for membership in the defendant association.

I. One of the conditions of the certificate was that no action should be maintained thereon unless a board of arbitrators of three members, one appointed by the supreme officer of the corporation, defendant, one appointed by the homestead or local subordinate organization or lodge, and one appointed by these two persons so selected, should fail to settle the claim made under the certificate. At the close of plaintiff's evidence, defendant moved for a directed verdict on the ground that plaintiff had failed to plead or prove performance of this condition precedent with reference to arbitration. This motion was overruled, and in this we think the court committed error. Such a provision for determination by arbitrators as to whether the loss is one covered by the contract is valid so far as it relates to the determination of questions of fact. Eighmy v. Brotherhood of Railway Trainmen, 113 Iowa 681, 83 N.W. 1051; Zalesky v. Home Insurance Co., 114 Iowa 516, 87 N.W. 428; s. c., 102 Iowa 613; s. c., 108 Iowa 341; Read v. State Insurance Co., 103 Iowa 307, 72 N.W. 665. There was no evidence whatever of any effort on the part of plaintiff to secure the appointment of a board of arbitrators, nor was there any evidence of a waiver by defendant of the condition of the certificate with reference to such arbitration. On the former appeal it was held that, in view of the general allegation by plaintiff of the performance of all conditions and obligations prescribed in the contract, it was not error to refuse to direct a verdict for defendant on the ground that the specific condition in relation to arbitration had not been performed; there being no question raised by the answer of defendant or otherwise as to the performance of such condition. But, when it is alleged in defendant's amendment to its answer that this condition precedent had not been performed, it was incumbent upon plaintiff to show compliance with the condition or facts constituting a waiver of such compliance on the part of defendant. While it was not necessary, under Code, section 3626, for plaintiff to do more than allege generally the performance of all conditions on her part, and defendant was required, under Code, section 3628, to make specific denial as to the performance of any particular condition, specifically stating in what respect plaintiff had failed to comply with such condition, nevertheless the burden rested upon plaintiff, after such specific denial, to prove performance of this condition precedent or waiver thereof, and waiver, if relied on, should have been specially pleaded. It was not for defendant to ask for an arbitration or appoint arbitrators until the claim was made against the defendant under the certificate and the appointment of the arbitrators provided for was required by plaintiff. The stipulation as to arbitration was not invalid as depriving the court of jurisdiction within the principle recognized in Prader v. National Masonic Accident Ass'n, 95 Iowa 149, 63 N.W. 601. Nor was it open to the objection sustained to stipulations for arbitration in Lindahl v. Supreme Court I. O. O. F., 100 Minn. 87 (110 N.W. 358, 8 L. R. A. [N. S.], 916, 117 Am. St. Rep. 666); and Markham v. Supreme Court I. O. O. F. (Neb.) 78 Neb. 295, 110 N.W. 638, that they were unreasonable. The plaintiff was simply required to postpone bringing action until the arbitration provided for had failed to result in a settlement of the claim. That such a stipulation is valid seems to be well settled. See cases collected and discussed in 2 Bacon, Benefit Societies, section 450.

II. After the evidence on both sides relating to false statements by the applicant as to his habits with reference to the use of intoxicating liquors, which were relied upon as a defense had been received, and both parties had rested, and during the progress of the argument of defendant's counsel to the jury, a motion was made in behalf of plaintiff to take from the jury all of the evidence offered by the defendant in relation to representations made by the deceased touching his use of intoxicating liquors as shown by the original application, and also all of the testimony of defendant's witnesses in relation to the previous habits of the deceased as to the use of intoxicating liquors, for the reason that a correct copy of the application was not indorsed upon or attached to the certificate sued upon, as required by the provisions of Code, section 1826, and to withdraw the defenses based on such...