Seiverts v. Nat'l Ben. Ass'n of Minneapolis
| Decision Date | 15 October 1895 |
| Citation | 95 Iowa 710,64 N.W. 671 |
| Parties | SEIVERTS v. NATIONAL BEN. ASS'N OF MINNEAPOLIS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Pottawattamie county; W. I. Smith, Judge.
Suit in equity to compel defendant, a mutual life insurance company, to levy an assessment to cover the amount of two certain certificates of membership issued to plaintiff upon the life of Fritz Seiverts. The defense is an alleged misrepresentation by the assured as to his age, in the application for insurance; and, second, that Fritz Seiverts allowed an assessment made by the company May 1, 1892, to go unpaid, and his certificate to lapse, and thereafter was guilty of fraud, and misrepresentations as to his health, in an application for reinstatement. Trial to the court. Decree for plaintiff, and defendant appeals. Affirmed.Geo. F. Getty and O. D. Wheeler, for appellant.
Flickinger Bros., for appellee.
The defendant is a life insurance association organized under the laws of the state of Minnesota, with its principal place of business at Minneapolis. On the 9th day of August, 1888, Fritz Seiverts, residing at Neola, Iowa, made application to defendant for membership in the company, and for insurance upon his life in a sum not exceeding $5,000, payable, in case of his death, to his wife, the plaintiff herein. This application was received by defendant company, at Minneapolis, on August 11, 1888, and the same was approved, and certificates issued to Seiverts on August 14, 1888. Seiverts died in Montana on November 28, 1892, of cancer of the stomach. This suit was brought to compel defendant company to levy an assessment upon its members to pay the amount called for by the certificates. The defense, as before stated, is: First. That the assured misrepresented his age, in his application for insurance, in that he stated in the application he was born in the year 1843. Second. That on the 1st day of May an assessment was levied by defendant company upon each of its members to pay death losses, and that Seiverts failed to pay the same when due; that afterwards he paid the same, under a provision for reinstatement, and furnished a health certificate, which was required as a condition for reinstatement, but that the health certificate was false and untrue; and that the policy became void by reason of these misrepresentations.
1. The application was not made a part of the policy, as required by the laws of this state; and it is insisted that the misrepresentations as to age, even if made, cannot be taken advantage of by the defendant. Defendant contends that the contract was made in Minnesota, and is to be governed by the laws of that state; that in Minnesota there is no requirement that the application be attached to or made a part of the policy; and that the representation made by the assured was a warranty, which, if untrue, avoids the policy. The plaintiff, by motion, attacked that part of the answer pleading the misrepresentation as to age, on the theory that the contract was made in this state, and that the defense here interposed was not permissible, because of the provisions of McClain's Code, § 1733; but the lower court overruled it, holding that the contract was made in Minnesota. No appeal was taken from this ruling, and we must accept it as being correct. We look then to the testimony relied upon to prove the alleged misrepresentation, and find that it consists of alleged statements made by the assured after the issuance of the policy--which, as we have seen, made plaintiff the beneficiary--as to the time of his birth, and as to his health. Although not necessary to a determination of the case, as we view it, it is extremely doubtful whether such testimony is admissible. See Tessmann v. Supreme Commandery (Mich.) 61 N. W. 261; Nibl. Mut. Ben. Soc. § 377; Bac. Ben. Soc. § 460. But, however this may be, our statutes (Acts 16th Gen. Assem. c. 55, § 3) provide, in substance,that when it shall be discovered that an assured has misstated his age, in an application for insurance, the company issuing the policy shall be permitted to demand and collect the difference of premium, if any, which would be due and payable on account of the true age of the assured, from year to year, according to the rates of premium of the company upon which the policy was issued, or such company may, after the decease of the assured, deduct from the amount payable by such policy the difference of premium, if any, which would so have been payable from year to year, by reason of any difference of age at the time of issuance of such policy, and no other defense shall be permitted, notwithstanding any warranty as to age, except when it be shown by the company issuing the policy that the policy was procured by fraud in fact. It will be presumed, in the absence of all evidence to the contrary, that the laws of Minnesota are the same as this statute of our own state. Davis v. Railroad Co., 83 Iowa, 744, 49 N. W. 77, and cases cited; German Bank v. American Fire Ins. Co., 83 Iowa, 491, 50 N. W. 53;Crafts v. Clark, 38 Iowa, 237;Sayre v. Wheeler, 32 Iowa, 559;Neese v. Insurance Co., 55 Iowa, 604, 8 N. W. 450; Bean v. Briggs, 4 Iowa, 465. From the evidence we find that the only misrepresentation as to age was one year,--that is, the deceased was 39, instead of 38, when his policy of insurance was issued; and, turning to the by-laws, we find that the assessments and dues are the same, whether the age is 38 or 39. So that there is no penalty, under the laws of this state, for the misrepresentation as to age; and the misrepresentation, even if established, will not avoid the policy.
2. At the time the policy was issued the by-laws provided for an assessment upon each of...
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