Simmons v. W. Life Indem. Co.

• Decision Date: 29 September 1915
• Docket Number: No. 29946.,29946.
• Citation: 171 Iowa 429,154 N.W. 166
• Parties: SIMMONS ET AL. v. WESTERN LIFE INDEMNITY CO.
• Court: Iowa Supreme Court

171 Iowa 429

154 N.W. 166

SIMMONS ET AL.

v.WESTERN LIFE INDEMNITY CO.

No. 29946.

Supreme Court of Iowa.

Sept. 29, 1915.

Appeal from District Court, Cass County; E. B. Woodruff, Judge.

Action in equity to reinstate a certificate of life insurance alleged to have been surrendered or exchanged, and to recover the amount of indemnity therein provided for. A demurrer to the original petition having been sustained, and an amended and substituted petition having been stricken from the files, the plaintiffs appeal. Affirmed.Wm. L. Barnum, Jr., of Chicago, Ill., and C. B. Clovis, of Atlantic, for appellants.

Thomas J. Graydon, of Chicago, Ill., E. H. Crocker, of Cedar Rapids, Thomas B. Swan, of Atlantic, and Tourtellot & Donnelly and Barnes & Chamberlain, all of Cedar Rapids, for appellee.

WEAVER, J.

The force and effect of the rulings of which appellants complain will be more readily understood, if we preface their discussion with the statement of certain facts alleged in the pleadings and conceded in the argument. In the year 1886 Johnson H. Needles became a member of the defendant life insurance association, receiving a certificate of membership by the terms of which, in the event of his death while still in good standing in the association, certain benefits were to be paid to his beneficiaries. In the year 1903 the association, for reasons not necessary now to discuss, adopted the plan of taking up the outstanding certificates of membership and issuing others in lieu thereof, so far at least as the assent of the individual members to such exchange or substitution could be procured. Needles, after correspondence with the defendant, delivered up his original certificate and received a new one in its stead, retaining the same until he died on January 25, 1908. The plaintiffs herein are the children and grandchildren of Needles, and are the beneficiaries of the insurance, if any is recoverable. In this action, which was begun March 21, 1910, they make no claim of right to recover upon the new or substituted certificate, but base their demand entirely upon the one originally issued. In support of this demand they allege that the indemnity provided for by the new certificate was much less valuable than that which was assured to the beneficiaries by the old certificate, and that Needles was deceived and misled with reference thereto by the fraud and misrepresentations of the association, its officers and agents, and because of such deception they pray a decree holding the substituted certificate for naught, and establishing their right to a recovery upon the original certificate, and that they have judgment accordingly. To this petition the defendant demurred on the grounds: (1) That a defect of parties appears in the failure to make the administrator of a deceased heir of Needles either plaintiff or defendant; (2) that the facts stated do not entitle plaintiffs to the relief demanded; and (3) that the facts stated show that the alleged cause of action is barred by the statute of limitations, and is also barred by the time limitation of six months stipulated for in the contract of insurance. On October 7, 1911, the demurrer was sustained generally. On November 8, 1911, plaintiffs filed an amendment to their petition, bringing in new parties, restating their allegations of fraud and misrepresentation by the defendant in procuring the exchange of certificates, and alleging that knowledge of the fraud was not obtained by plaintiffs until November 1, 1909. They further allege, in substance, that by the acts of the defendant with reference to the exchange in policies in the year 1903 said association repudiated its obligation upon said contract of insurance, and that such repudiation and abandonment of its contract did not become known to Needles or his beneficiaries, “except partially,” until December 12, 1905. Upon the filing of this amendment, defendant moved for a more specific statement of the facts as to the alleged fraud and the persons by whom the false representations were made. This motion having been sustained, plaintiffs, on November 28, 1911, again amended their petition. To the amended petition defendant again demurred on the grounds: (1) That the right of action, if any, is in favor of the administrator of Needles' estate; (2) that the facts stated do not entitle plaintiffs to the relief demanded; and (3) that the right of action is barred both by the statute of limitations and by the limitation provided for in the contract. On May 6, 1912, this demurrer was also sustained generally. On July 25, 1912, plaintiffs once more filed an amendment and substituted petition, alleging substantially as before, but with somewhat greater particularity,the issuance of the original certificate and the fraud and deception by which Needles was induced to surrender the same and accept the substituted certificate. The defendant thereupon moved to strike the last amended and substituted petition, because (1) it was filed without leave of court; (2) that plaintiffs had already filed their petition, followed by numerous amendments and substitutes, to which demurrers had been sustained, and that to permit further amendment and substitution would be an abuse of discretion; (3) that the pleading so filed is a sham and frivolous; and (4) that upon the ruling of the court sustaining the demurrer to the prior substituted petition plaintiffs' counsel had announced their purpose to stand upon their pleading and their refusal to further amend the same, and for that reason the right to make further amendment could only be exercised by leave of court. Subject to the motion to strike, defendant further moved for more specific statement of the plaintiffs' allegations of fraud. On February 10, 1913, the court sustained the motion to strike. On December 29, 1913, the plaintiffs once more filed an amended and substituted petition, which they describe as being “in lieu of all other pleadings.” The pleading so filed is a restatement of the various allegations made in the prior petitions, amendments, and substitutes. Defendants at once returned to the attack with a motion to strike the pleading last mentioned, because (1) it was filed without leave; and (2) it was a mere repetition of the allegations of the pleadings against which demurrer and motions to strike had already been sustained, and that to...