Penn Mut. Life Ins. Co. of Philadelphia, Pa. v. Doyen

• Decision Date: 09 December 1930
• Docket Number: 40493
• Citation: 233 N.W. 790,211 Iowa 426
• Parties: PENN MUTUAL LIFE INSURANCE COMPANY OF PHILADELPHIA, Appellant, v. KATHARINE DOYEN, Appellee
• Court: Iowa Supreme Court

233 N.W. 790

211 Iowa 426

PENN MUTUAL LIFE INSURANCE COMPANY OF PHILADELPHIA, Appellant, v. KATHARINE DOYEN, Appellee

No. 40493

Supreme Court of Iowa, Des Moines

December 9, 1930

Appeal from Marshall District Court.--CLARENCE NICHOLS, Judge.

Action in equity, brought by the plaintiff to cancel a policy of insurance issued to George J. Doyen, in which Katharine Doyen is the named beneficiary, said cancellation being sought on the ground that the policy was procured by fraud and misrepresentation on the part of the insured. The defendant filed an answer in the equity action, and at the same time filed a cross-petition, seeking to recover on the policy of insurance. Thereafter, the defendant filed a motion in two divisions, seeking, first, to have the cross-petition transferred to law and there tried, and second, to transfer the whole case. The court sustained the first ground,--that is, transferring the cross-petition to law,--and overruled the motion asking to have the entire case transferred to law. Plaintiff appeals from the ruling transferring the cross-petition to law.

Reversed.

C. H E. Boardman, for appellant.

E. N Farber and M. M. O'Bryon, for appellee.

GRIMM J. MORLING, C. J., and EVANS, FAVILLE, and KINDIG, JJ., concur.

OPINION

GRIMM, J.

Briefly stated, the facts are that, on December 12, 1928, the plaintiff issued to George J. Doyen the policy of life insurance in controversy. The said Doyen gave the plaintiff a premium note, as payment of the first premium. On April 11, 1929, the plaintiff filed in the district court of Marshall County a petition in equity, alleging, in substance, the issuance of the policy; that Katharine Doyen, widow of the insured, is the named beneficiary; that she is the administratrix of the estate of George Doyen, deceased; that the policy in question was issued December 12, 1928, by which the plaintiff company agreed to pay the beneficiary the sum of $ 25,000, upon the filing of satisfactory proofs of death, and in compliance with the terms of the contract; that the policy or contract of insurance was issued by the plaintiff in consideration of and in reliance on said statements, answers, and representations of the insured made to it and to the company's medical examiner in the application dated December 8, 1928, and medical examination dated December 9, 1928, copies of which were attached to the petition.

The misrepresentations referred to pertain to the use of intoxicating liquors. The plaintiff alleged that, if the answers of the insured to the questions asked pertaining to intoxicating liquors had been truthful, the policy would not have been issued. The plaintiff alleges that it did not discover the false and fraudulent character of the representations until after the death of George J. Doyen.

There is an allegation of tender to the administratrix and widow of the premium paid. The plaintiff further alleges "that, so long as the said policy of life insurance remains outstanding, there is a grave risk that the evidence of the false and fraudulent character of the representations made by the said George J. Doyen may become unavailable, and further avers that defendants are deliberately delaying action for that reason and on that account."

There is an allegation that it (plaintiff) has no full, complete, and adequate remedy at law, and the plaintiff prays "that it be ordered, adjudged, and decreed that the contract of life insurance be rescinded, and that Policy No. 1,380,042, issued by the Penn Mutual Life Insurance Company, of Philadelphia, Pennsylvania, on the life of George J. Doyen, and hereinbefore described, be delivered up and surrendered to it for cancellation, and the court may hold the same to be null and void, and of no further force or effect; and for such other and further relief as this court may deem just and equitable." Attached to the petition is a copy of the policy and application, together with the report of the examining committee.

On July 13, 1929, the defendant Katharine Doyen, widow of George J. Doyen, as administratrix of his estate, filed her answer, in the nature of a general denial, except as to certain specific admissions of allegations set out in the petition. On the same day, there was filed by "Katharine Doyen, plaintiff," a cross-petition at law, but filed in the same suit and under the same suit number, in which she sought to recover in an ordinary law action against the plaintiff company on the policy of insurance. On August 15, 1929, plaintiff insurance company filed a reply to the answer, and on the same day, the insurance company filed an answer to the cross-petition.

On December 31, 1929, Katharine Doyen, as plaintiff, filed an amendment to her cross-petition at law. On March 11, 1930, Katharine Doyen filed her reply to the answer to the cross-petition, and on March 14, 1930, Katharine Doyen filed a motion to transfer to law, in two divisions, in the first of which she asked to have her cross-petition transferred to law, for assignment and trial, and in the second division, she asked to have her entire cause transferred to law, for assignment and trial. On March 19, 1930, the court sustained Ground 1 of said motion to transfer, and transferred said cause to the law side of the docket, and overruled Ground 2 of said motion. Both sides appealed.

I. The appeal of Katharine Doyen cannot be here considered, because there have been filed no list of errors relied upon for reversal, no brief points of law, and no argument. This is too plain to require the citation of authorities.

II. It will be noted that nowhere does Katharine Doyen in any manner challenge the sufficiency of the petition filed by the insurance company as an action in equity. She has not, by a motion or otherwise, challenged the jurisdiction of the court to try the plaintiff's case, as set forth in its petition, upon the allegations therein set forth. The petition alleges that the plaintiff has no full, complete, and adequate remedy at law. Furthermore, the plaintiff alleges that "there is a grave risk that the evidence of the false and fraudulent character of the representations made by the said George J. Doyen may become unavailable, and further avers that defendants are deliberately delaying action for that reason, and on that account."

The prayer of the petition is that the contract of life insurance and the policy be delivered up and surrendered by cancellation, and that the court hold the same to be null and void. There is no claim made by the defendant that the court did not have jurisdiction to entertain and determine the cause of action filed by the plaintiff. A mere general denial is not sufficient to raise the jurisdiction of the court to try plaintiff's cause, as set forth in the petition, in equity.

Certain statutory provisions (Code, 1927) have a bearing on the question involved:

"10944. Error--effect of. An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket.

"10945. Correction by plaintiff. Such error may be corrected by the plaintiff without motion at any time before the defendant has answered, or afterwards on motion in court.

"10946. Correction on motion. The defendant may have the correction made by motion at or before the filing of his answer, where it appears by the provisions of this Code wrong proceedings have been adopted. [Writer's italics.]

"10949. Errors waived. An error as to the kind of proceedings adopted in the action is waived by a failure to move for its correction at the time and in the manner prescribed in this chapter; and all errors in the decisions of the court are waived unless excepted to at the time, save final judgments and interlocutory or final decrees entered of record."

The defendant Katharine Doyen having failed to challenge the jurisdiction of the court to try the issues tendered by the plaintiff's petition in equity, and having answered and having filed her cross-petition of the counterclaim in the equity action, although having denominated it at law, can she thereafter move to have either her so-called cross-petition at law transferred to law, or the entire proceeding transferred to law? The appellee cites three cases which she claims are determinative of the matter before the court. They are Biermann v. Guaranty Mut. Life Ins. Co., 142 Iowa 341, 120 N.W. 963; Des Moines Life Ins. Co. v. Seifert, 210 Ill. 157 (71 N.E. 349); Insurance Co. v. Bailey, 80 U.S. 616, 13 Wall. (U.S.) 616 (20 L.Ed. 501).

In the Biermann case, a suit was brought at law on a policy of life insurance. The defendant insurance company, by way of answer, alleged, in substance, that the insured had made false warranties, and that the policy had been procured by fraud and misrepresentations. After the action had been pending some time, the defendant insurance company filed a cross-petition, praying for a rescission and cancellation of the policy. The cross-petition was denied by the plaintiff, and the defendant moved that the issue thus joined be tried in equity, before trial of the law issues. The court refused to make the transfer. This court sustained the lower court, holding, among other things, as follows:

"The defendant had been brought into a court of law to answer to an action upon its contract. If that contract had been procured by fraud or false representations, such fact was a full, complete, and perfect defense to the action, and, if that defense was made good, the policy would be deprived of all vitality, as fully as could have been accomplished by a decree in equity, formally canceling it. The appropriate law issue for that purpose had already been joined, and was...