Krause v. Modern Woodmen of Am.

• Decision Date: 06 February 1907
• Parties: KRAUSE v. MODERN WOODMEN OF AMERICA.
• Court: Iowa Supreme Court

133 Iowa 199

110 N.W. 452

KRAUSE

v.MODERN WOODMEN OF AMERICA.

Supreme Court of Iowa.

Feb. 6, 1907.

Appeal from District Court, Muscatine County; D. V. Jackson, Judge.

The petition alleged that “defendant is a corporation organized under, and by virtue of, the laws of the state of Illinois as a life insurance and beneficial society, with its head office at Rock Island in said state, and various subordinate lodges at other and divers places, of which one is located at Muscatine, Iowa”; that August Krause became a member of such lodge July 26, 1898, to whom defendant then issued an insurance policy on his life in the sum of $1,000, with plaintiff named therein as beneficiary; that the insured was in good standing in the society at the time of his death; that defendant has rejected plaintiff's claim of indemnity; and she prayed for judgment for the amount of policy with interest. To this petition was attached a copy of what is designated a “benefit certificate,” which described defendant as “a fraternal beneficiary society,” and his application to become a member in which he stated that he “was born in the state of Germany on the 14th day of March, 1854; am now between 44 and 45 years of age.” Both the certificate and application state that the former is based on the latter, and that, if answer or statement in the application is not literally true, the certificate shall be void. The answer admitted the issuance of the certificate and death of Krause as alleged, and then averred that the defendant is “a fraternal beneficiary society with head office at Rock Island in the state of Illinois having subordinate bodies”; that the statement of Krause as to his age was untrue, in that he was born in 1851 instead of 1854, and was past 47 years of age instead of 44, and that, under the by-laws of the organization, no one could be admitted a member after attaining the age of 45 years; that, because of having procured the certificate through such false statement as to age, the certificate was void and defendant not liable. To this answer plaintiff demurred on the ground that it did not allege that the insured knew the statement of his age was false. The demurrer was sustained, and, as defendant elected to stand on the ruling, judgment was entered as prayed, and it appeals. Affirmed.Truman Plantz and E. M. Warner, for appellant.

J. C. Coster and J. R. Williams, for appellee.

LADD, J.

The answer raised but one issue and that is whether the certificate of insurance was void owing to a misstatement in the application of the age of deceased. The general denial of the general allegation of conditions precedent in the petition did not put them in issue. Sections 3626, 3628, Code. A by-law of the society well pleaded fixed the maximum age of admission at 45 years. According to the answer the insured at the time of signing the application was over 47 years of age, but stated therein that he was under 45 years. The demurrer to this answer was sustained on the ground that scienter was not averred. The statement in the application undoubtedly was in the form of a warranty, and must be treated as such unless obviated by statute. This is so fully settled by the authorities that the citation of a few will suffice. Nelson v. Insurance Co., 110 Iowa, 600, 81 N. W. 807;Modern Woodmen of America v. Van Wald (Kan. App.) 49 Pac. 782;Finch v. Modern Woodmen of America (Mich.) 71 N. W. 1104;Baumgart v. Modern Woodmen (Wis.) 55 N. W. 713. The theory of the plaintiff and doubtless of the trial court was that the effect of such statement as to age, even though a warranty was obviated by the section 1813 of the Code, hereinafter set out. Appellant has undertaken to meet this by saying that this statute has no application to societies such as defendant, and if the record were such as to indicate that defendant was a fraternal benevolent society as defined by section 1822 of the Code, this would have to be conceded. Smith v. Supreme Lodge, 123 Iowa, 676, 99 N. W. 553. But it is alleged in the petition that defendant is “a life insurance and beneficial society.” That it is designated as “a fraternal beneficiary society” in the certificate attached is not inconsistent with this, for the exhibit forms no part of the allegation with respect to the character of the association. Insurance societies to which the statute concededly applies are regulated by chapters 7 and 8 of title 9 of the Code, and are defined in section 1784. All essential was a general averment of defendant's corporate capacity as such. Section 3627, Code. Such an allegation cannot be put in issue, however, by a general denial or the averment of a different corporate capacity as a conclusion, but “the facts relied on must be specifically stated.” Section 3628, Code. The answer, while not putting in issue the character of the defendant corporation, as a life insurance society, merely alleged generally that it was “a fraternal beneficiary society, with head offices at Rock Island in the state of Illinois, with subordinate lodges.” This was but a conclusion, and, in failing specifically to plead the facts, indicating that it was not a life insurance society as defined in the Code, and that it was a fraternal beneficiary society as defined by section 1822, and as regulated by chapter 9 of title 9 of the Code relating to such associations, did not put in issue the averment that it was a life insurance society as contained in the petition. Stork v. Supreme Lodge, 113...