Pray v. Life Indemnity & Security Co.

• Citation: 73 N.W. 485,104 Iowa 114
• Parties: SARAH PRAY v. THE LIFE INDEMNITY AND SECURITY COMPANY AND C. E. MABIE, Secretary, Appellant
• Decision Date: 17 December 1897
• Court: United States State Supreme Court of Iowa

73 N.W. 485

104 Iowa 114

SARAH PRAY v. THE LIFE INDEMNITY AND SECURITY COMPANY AND C. E. MABIE, Secretary, Appellant

Supreme Court of Iowa, Des Moines

December 17, 1897

Appeal from Black Hawk District Court.--HON. J. J. TOLERTON, Judge.

PLAINTIFF the beneficiary named in a certificate of life insurance issued by the defendant on the life of Ira Christie, now deceased, brings this action for judgment, and for an order requiring the defendant to make an assessment to pay the amount alleged to be due under said certificate. The defendant answered, pleading as defense, in substance, as follows: That this action is barred, for the reason that proofs of loss were not made within sixty days from the date of the death, as required by section 3, chapter 211, Laws Eighteenth General Assembly; that there was another action pending between these parties, involving these same issues that said certificate was forfeited by reason of failure to pay benefit assessments Nos. 34, 35, 38, and 40. The defendant also pleads two unsatisfied judgments, which it holds against the plaintiff, and asks that the amount thereof be set off against any amount found due the plaintiff. The plaintiff, in reply, denies that said assessments were legally made, and denies that Ira Christie was legally notified thereof, or that, by reason of non-payment of said assessments said certificate was forfeited. The issues will more fully appear in the opinion. Decree was rendered in favor of the plaintiff. Defendant appeals.--Modified and affirmed.

AFFIRMED.

Alford & Gates for appellant.

Boies Couch & Boies for appellee.

OPINION

GIVEN, J.

I.

Appellant's first contention is that this action is barred, for the reason that proofs of loss were not furnished within sixty days from the date of Mr. Christie's death. There is nothing contained in the defendant's by-laws, nor in this certificate, fixing the time within which proof of death must be made; but appellant's contention is that the case comes within chapter 211, Laws Eighteenth General Assembly, and that proof of death must be made within sixty days from the date of the death. Whether this statute applies we will not stop to consider, as, in the view we take of the case it is immaterial. Mr. Christie died September 7, 1886, at Pasadena, Cal., and on that day plaintiff sent "an order of notice" to the defendant, which was received, "reciting the death of her son, Ira Christie," also stating that she had been compelled to borrow two hundred and fifty dollars of M. W. McGee, and directing the defendant to charge that sum against the policy, and to retain it for Mr. McGee. Mr. McGee wrote the defendant on the same day, inclosing the notices of the death and of the loan to Mrs. Christie, which notices were also received by the defendant. The certificate provides that "upon the receipt at the Waterloo office of satisfactory proofs, on blanks furnished by the association of the death of Ira Christie, this association will pay to his mother, Sarah Christie," etc. On September 17, 1886, plaintiff wrote to defendant, from Rock Falls, Ill., as follows: "Send blanks to me to be filled out for the death of Ira Christie, certificate No. 6,699, and give me such other information as I shall require." Defendant did not send the blanks, but answered September 20, 1886, returning money sent in payment of assessment No. 44, for the reason that "the certificate expired on the evening of the 5th of September." The defendant further says: "The death, as you said, occurred on the 7th of September. Therefore, the association is not liable, and we cannot accept the money." It is manifest from this and other correspondence that the defendant, as is alleged by the plaintiff, at all times denied its liability, solely upon the ground that the certificate had been forfeited. It did not furnish blanks, as required by the certificate, because it did not desire other proofs of the death than those which had already been furnished. Under these circumstances, it was not required, even under said act of the Eighteenth General Assembly, that plaintiff should do more in the way of furnishing proof of the death. It is true that the plaintiff did, a long time after the death, furnish formal proofs thereof, but this act cannot affect the rights of the parties. This action is not barred for want of proofs of the death, for the reason that the defendant waived any right it had to other or different proofs of the death than those which were furnished by failing to furnish the blanks when required, and by basing its denial of liability solely upon the claim of the forfeiture of the certificate.

II. Appellant's next contention is that this action is barred by the pendency of the other action between these parties, upon these same issues. That action was heard at the March term, 1894, and, "by agreement, case to be argued and submitted in vacation, and decision to be rendered in vacation." This case was commenced July 27, 1894, and was heard in June, and decided July 26, 1895. On April 12, 1894, plaintiff filed a written dismissal of the other action, but, at the time of this hearing, that case had not been taken from the docket. Appellant contends that the written dismissal did not dismiss that case, because it was after submission, and because the defendant's answer contained a counter-claim. That case was to be submitted in vacation, and it does not appear that it had been submitted before the dismissal was filed. The alleged counter-claim was the same two judgments set up in this case, and the relief asked was not for judgment on these judgments, but that the amount thereof might be set off against any amount found in the plaintiff's favor. As, by the dismissal, the plaintiff waived any right to recover in that case, there was no ground for granting the relief asked by the defendant, and the dismissal was an end of the case, and therefore it is not a bar to this action.

III. Counsel discuss the question whether the assessments Nos. 34 35, 38, and 40 were legally levied, and whether the notices thereof are such as that Mr. Christie forfeited his certificate by failure to pay said assessments within the time required. It is not disputed that these assessments were on account of the death of members in good standing, and that Mr. Christie was liable therefor in the amounts assessed. In view of this fact and our conclusion with respect to the notice, we do not inquire as to the regularity of the manner in which assessments were made, but accepting them as regular, we inquire as to the notices. The certificate recites, as one of the considerations therefor, the prompt payment of such benefit assessments as may be legally levied by its board of directors, and that the certificate shall be void if the amount of any assessment made under said certificate is not received at the Waterloo office within thirty days from the date of notice thereof. Section 19 of the by-laws in force at the time Christie became a member...