McArthur v. Home Life Ass'n

• Decision Date: 08 December 1887
• Citation: 35 N.W. 430,73 Iowa 336
• Parties: MCARTHUR, ADM'R, v. HOME LIFE ASS'N.
• Court: Iowa Supreme Court

73 Iowa 336

35 N.W. 430

MCARTHUR, ADM'R,

v.HOME LIFE ASS'N.

Supreme Court of Iowa.

December 8, 1887.

Appeal from circuit court, Des Moines county; CHARLES H. PHELPS, Judge.

Action on a policy of insurance. Judgment for the plaintiff, and the defendant appeals.Newman & Blake, for appellant.

Antrobus & McArthur, for appellee.

SEEVERS, J.

The trial was to the court, and the following are the facts found by the court: “That on the seventh day of June, 1882, one Geo. W. Hair, claiming to act as agent for the defendant, applied to decedent, A. Wooline, to take out a policy of insurance on his life in defendant company; that said Hair, through B. A. Bailey & Co., district agents of defendant's company, forwarded the application to the defendant, with his name indorsed as agent thereon; that on the twelfth day of June, 1882, defendant issued a policy to decedent on said application for the sum of $3,000, by the terms of which defendant undertook and agreed, upon proper proof of his death, to assess each member of class B, in which he was insured, according to the policy held by each in division B, then in force, and to pay over the amount so collected, less cost of collection, to the legal heirs of the assured, which policy was delivered to decedent by the duly-authorized agent of defendant; that decedent paid all his dues and assessments on said policy, according to its terms, up to February 16, 1885, on which day he died; that in April, 1885, proofs of his death were filed with the defendant in regular form, and thereupon the defendant made an assessment as stipulated in the policy, and realized therefrom the sum of $455.50, which was all they were able to collect on said assessment, which it now holds subject to the decision of this court; that the application upon which the policy was issued was filled up by said Hair; that said decedent, in reply to the question as to the date of his birth, stated that he was born on the twenty-fifth day of December, 1816; but that said Hair falsely stated it in said application as December 25, 1846, but in reading the answer to decedent read it as December 25, 1816; that decedent had no knowledge that the date of his birth was falsely stated in said application; that the policy issued to decedent stated that his age was thirty-six; that said policy was changed by said Hair after it was received by him, and before he delivered it to decedent, so as to represent his age as sixty-six, of which change decedent had no knowlege; that the pretended examination of the applicant by a physician, and indorsement on the application, was forged by said Hair without decedent's knowledge, and that in fact no physician's examination was ever made; the defendant had no knowledge of the false statement of the age of the applicant, or of the forging of the physician's certificate, or of the change of the age on the policy, until after the death of the assured; that the true age of the decedent appeared in the proof of death, which was received before the assessments were made; that under the rule of defendant company no policy was to be issued to any person over sixty years of age; that sometimes applications taken by said Hair were sent by him directly to the company, and that policies were sometimes sent by the company directly to him for delivery, but that this particular policy was sent to Hair through B. A. Bailey & Co., district agents of defendants, and to whom Hair was employed to take applications for policies. I further find that the assessments made under the policy were made upon the basis of the age of thirty-six, which was only one-half the assessment due upon policies issued to parties over fifty-six; the amount in the first case being one dollar, and upon the second, two dollars. I find that the policies contain the following provision, it being the only one relating to the authority of the agent, and there is no other evidence as to the authority of the agent Hair, except such as is found by the court in said clause of the policies. The said clause reads as follows: ‘No. 7. The authority of the agent ends with sending in the application and delivering the policy, and he has no authority to collect assessments or annual dues,...