State v. Timmer

Decision Date06 June 1967
Docket NumberNo. 52362,52362
PartiesSTATE of Iowa, Appellant, v. William E. TIMMER, Appellee.
CourtIowa Supreme Court

Richard C. Turner, Atty. Gen., Robert N. Merillat, Asst. Atty. Gen., and Phil Gross, Bremer County Atty., for appellant.

No appearance for appellee.

GARFIELD, Chief Justice.

This is an appeal by the State from a judgment of acquittal on verdict directed by the court following trial of indictment charging defendant William E. Timmer with the crime of false pretenses, contrary to section 713.1 Code 1962.

Although defendant was vigorously defended in the district court, we do not have the benefit of a brief for him here.

I. The judgment of acquittal is final as to defendant. However, we will entertain an appeal by the State in a criminal case where it presents a legal question the determination of which will be beneficial, or a guide, to trial courts in the future. See Code section 793.20; State v. Flack, 251 Iowa 529, 530, 101 N.W.2d 535, 536 and citations; State v. Rasmus, 249 Iowa 1084, 1086, 90 N.W.2d 429, 430 and citations. We think this is such an appeal.

II. The indictment, in the language of the statute it is claimed was violated, charges defendant did designedly and by false pretense and with intent to defraud obtain the signature of Mrs. Charles A. Gritzner to a bank check, dated September 25, 1965, the false making of which would be punished as forgery, contrary to section 713.1 Code 1962.

The check, exhibit B, is for $200, payable to American Security Association, signed by Mrs. Gritzner, drawn on her home town bank. It was given defendant for what Mrs. Gritzner and her husband testify they understood to be the first year's premium on hospital insurance defendant orally represented he was selling them. The writing on the face of the check is defendant's except for Mrs. Gritzner's signature as maker. The check, endorsed 'American Security Association, William E. Timmer', was paid by the drawee bank and charged to the maker's account. The word 'Benevolent' is omitted from the payee's name on the face of the check and indorsement.

The state's claim is that the evidence shows defendant was not in fact selling the Gritzners hospital insurance but socalled benefits in American Security Benevolent Association which defendant falsely and fraudulently represented was hospital insurance.

Mrs. Gritzner received through the mail a four-page paper, dated November 1, 1965, (exhibit F) designated 'Contributing Disability Benefit Certificate' in American Security Benevolent Association, reciting she is a 'Social Member' of the association.

The state offered testimony from Mr. and Mrs. Gritzner and a Logan Kelly of nearby Waterloo to whom defendant made statements like at least some of those made to the Gritzners five days earlier and from whom defendant received a check for $110.

At the conclusion of such evidence the court, on defendant's motion, directed a verdict of acquittal principally on the ground he had 'difficulty in concluding that this (exhibit F) is not an insurance contract rather than arriving at what seems to be the far more logical conclusion that it is an insuring agreement and is insurance.' The trial court went on to express the view 'that this type of public sale should be prohibited.' The fact he found no express statutory prohibition against sale of such benefits as exhibit F provides, even if truthfully represented to proposed purchasers, seems to have influenced the court's disposition of the case.

Earlier in the court's ruling he observed, in effect, that if exhibit F is not an insurance contract a jury question would be generated with respect to the false and fraudulent character of the representations made by defendant.

III. We disagree with the view that the 'Benefit Certificate' in this 'Benevolent Association' may fairly be called a contract or policy of hospital insurance in any true sense.

The certificate provides members of the association will be divided into groups in which each member agrees, within 30 days after notification, to donate $1 to reimburse each other member of the group who becomes hospitalized from accident or sickness. These are other provisions: 'Failure to donate within thirty days will void your membership in the sickness plan * * *.

'The members understand that the * * * Association is not an Insurance Company, but rather a benevolent Association for helping fellow members in times of sickness and accident. As such the Association can not and does not guarantee any rates or benefits and the claimant member receives only what the Members in the group donate.

'Each group should consist of approximately 2500 members. * * *.

'I have agreed with the * * * Association to join their sickness and accident plan. I understand and agree that the * * * Association is Not an INSURANCE COMPANY, AND THEY CANNOT GUARANTEE RATES OR BENEFITS.'

Payment of $110 per person for the first year's 'dues' and $30 per person for each subsequent year, in addition to donations of $1 for each member of the group who becomes hospitalized, is required.

In American Security Benevolent Association v. District Court, Iowa, 147 N.W.2d 55, 57--58, (December 13, 1966) we were faced with similar contracts of this same association. The district court there adjudged three of its officers and a salesman in contempt for violating a temporary injunction restraining them from falsely and fraudulently representing themselves as insurance agents for the corporation and from omitting to inform prospective purchasers of the required donations and that payments to a member are not guaranteed to a specific amount but are wholly dependent upon the voluntary contributions of other members. We affirmed the contempt order as to the salesman but found the evidence of violation of the injunction insufficient as to the officers.

Our opinion describes the operations of the association and summarizes the provisions of its contracts much as we have done, supra. These excerpts from the opinion support the conclusion that a 'Benefit Certificate' in this 'Benevolent Association' does not represent insurance:

'I. American Security is not a fraternal beneficiary association organized under chapter 512, nor a domestic insurance company as set forth in chapter 506, nor is it qualified to contract to sell life, health or accident insurance in Iowa as authorized in chapters 508, 512 and 515, Code, 1966. The contracts offered are not in the nature of insurance contracts as contemplated in those chapters or chapter 514A. * * *

'The corporation's plan or contract is distinguished from insurance on the ground it does not agree to pay a sum of money upon the happening of a particular event, here death or disability, but promises only to transmit to the claimant such sums as may be received from assessments levied upon members of claimant's group.'

In fairness to the trial court we may observe that the opinion from which we have just quoted was not filed until several months after the judgment...

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8 cases
  • Kinkaid v. John Morrell & Co.
    • United States
    • U.S. District Court — Northern District of Iowa
    • 18 Junio 2004
    ...pay to him or his nominee a certain or ascertainable sum of money on a specified contingency* * * *.'") (quoting State v. Timmer, 260 Iowa 993, 999, 151 N.W.2d 558, 561 (1967)). Nevertheless, the three-factor test identified by the Iowa Supreme Court is not the end of the inquiry of whether......
  • Huff v. St. Joseph's Mercy Hospital of Dubuque Corp.
    • United States
    • United States State Supreme Court of Iowa
    • 18 Enero 1978
    ...in the contract itself. The court must look also to the intention of the parties in making this determination." In State v. Timmer, 260 Iowa 993, 999, 151 N.W.2d 558, 561, we adopted this definition of " * * *. 'More broadly, however, the term "insurance," or "insurance contract," or "insur......
  • State v. Moline
    • United States
    • United States State Supreme Court of Iowa
    • 14 Enero 1969
    ...it was made. State v. Huckins, 212 Iowa 283, 287, 234 N.W. 554, 559; State v. Comes, 245 Iowa 485, 491, 62 N.W.2d 753, 757; State v. Timmer, Iowa, 151 N.W.2d 558, 561. There was ample evidence upon which the jury could find defendant had knowingly made a false representation of material exi......
  • State v. Grice
    • United States
    • United States State Supreme Court of Iowa
    • 20 Abril 1994
    ...court erred in dismissing the charge against Grice. However, the judgment of acquittal is final as to Grice. See State v. Timmer, 260 Iowa 993, 995, 151 N.W.2d 558, 559 (1967). We therefore reverse the judgment of acquittal but do not remand the REVERSED. ...
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