Seiverts v. National Ben. Ass'n of Minneapolis

• Decision Date: 15 October 1895
• Citation: 64 N.W. 671,95 Iowa 710
• Parties: CHRISTINA SIEVERTS v. THE NATIONAL BENEVOLENT ASSOCIATION OF MINNEAPOLIS, MINNESOTA, Appellant
• Court: Iowa Supreme Court

64 N.W. 671

95 Iowa 710

CHRISTINA SIEVERTS v. THE NATIONAL BENEVOLENT ASSOCIATION OF MINNEAPOLIS, MINNESOTA, Appellant

Supreme Court of Iowa, Des Moines

October 15, 1895

Appeal from Pottawattamie District Court.--HON. 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 Sieverts. The defense is an alleged misrepresentation by the assured as to his age, in the application for insurance; and, second, that Fritz Sieverts 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.

OPINION

Deemer, J.

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 ninth day of August, 1888 Fritz Sieverts, residing at Neola, Iowa made application to defendant for membership in the company, and for insurance upon his life in a sum not exceeding five thousand dollars, 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 Sieverts on August 14, 1888. Sieverts 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 first day of May an assessment was levied by defendant company upon each of its members to pay death losses, and that Sieverts 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.

I. 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, section 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 a solution of the question is 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 61 N.W. 261; Niblack Mut. Ben. Soc., section 377; Bacon Ben. Soc., section 460. But, however this may be, our statutes (Acts Sixteenth General Assembly, chapter 55, section 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 464. From the evidence we find that the only misrepresentations as to age was one year,--that is, the deceased was thirty-nine, instead of thirty-eight, 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 thirty-eight or thirty-nine. 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.

II. At the time the policy was issued the by-laws provided for an assessment upon each of the members of the association to meet death losses, payable within thirty days from the day of notice. They also provided that, within fifteen days after an assessment became due, the member may pay the same at the home office, by paying in addition thereto the sum of twenty-five cents. After the assured became a member of the company this last provision of the by-laws was changed, and a by-law was adopted providing for reinstatement within fifteen days, by paying the extra...