Townsend v. Fid. & Cas. Co. of N.Y.

• Decision Date: 15 December 1913
• Citation: 163 Iowa 713,144 N.W. 574
• Court: Iowa Supreme Court
• Parties: TOWNSEND v. FIDELITY & CASUALTY CO. OF NEW YORK (SOWER, INTERVENER). ELLIS v. FIDELITY & CASUALTY CO. OF NEW YORK (HALL, INTERVENER).

163 Iowa 713

144 N.W. 574

TOWNSEND

v.FIDELITY & CASUALTY CO. OF NEW YORK (SOWER, INTERVENER).

ELLIS

v.FIDELITY & CASUALTY CO. OF NEW YORK (HALL, INTERVENER).

Supreme Court of Iowa.

Dec. 15, 1913.

Appeal from District Court, Polk County; James P. Hewitt, Judge.

Actions at law upon policies of accident insurance. There was in each case a trial to the court without a jury and judgment in each for the intervener. The plaintiffs appeal. As the two cases present similar states of fact and the rights of the parties turn upon the construction to be placed on like clauses in the insurance contract, they have been submitted together and will be disposed of in one opinion. Reversed.Carr, Carr & Evans, of Des Moines, for appellants.

Sullivan & Sullivan, of Des Moines, for defendant appellee.

Louis Englander, of Cleveland, Ohio, and I. M. Earle, of Des Moines, for appellees interveners.

WEAVER, C. J.

On October 7, 1911, one William T. Sowers, then residing at Des Moines, Iowa, was accidentally shot, and from the injury so received he died on October 9, 1911. At the time of his injury and death he held two valid policies of accident insurance issued to him by the defendant herein, each of which policies provided for payment to the beneficiary therein named of a death benefit in the sum of $5,000. He was an unmarried man and in the first policy known in the record as No. 4,370,676 his brother James M. Sowers was named as beneficiary, while the other policy, No. 4,406,470, was made payable to his sister Mrs. Robert Hall. After his injury and in apparent view of his impending death, he made and executed a will by which (omitting the merely formal parts) he provided as follows:

“I give and bequeath to Jean B. Townsend the proceeds of a certain accident policy in the Fidelity & Casualty Company of New York, the beneficiary in which is now my brother J. M. Sowers.

I give and bequeath to Elton Ellis in trust for my creditors the proceeds of a certain policy of insurance in the Fidelity & Casualty, the beneficiary in which I believe to be my mother or sister.

I give and bequeath to Jean B. Townsend my furniture, fixtures, pictures and household goods.

All the balance and residue of my estate, both real and personal, I give, devise and bequeath to my mother.

I nominate Elton Ellis and Fred P. Carr as the executors of my estate.”

The legatee Jean B. Townsend was the affianced wife of the testator. Two days after his death notice thereof and of the fact that he left a will and of the change or attempted change thereby made in the beneficiaries of his accident insurance was given to the defendant. The company holding to the view that no change of beneficiaries had been affected, or at least that the question so raised was doubtful, declined to recognize plaintiff's alleged rights, and thereupon the actions now before us were instituted; in each action the person named as beneficiary intervened asking to be adjudged entitled to receive the fund. The defendant company answered in each case admitting the issuance of the policy in suit and that the same was in force at the death of the insured. It also admitted the accidental death of the insured, the fact that he made the will above mentioned, and that such will had been admitted to probate. It pleads, however, that according to the terms of the policy in suit the matter of changing the beneficiaries of such insurance is governed by rules indorsed upon the instrument as follows:

“Sec. 20. The consent of the beneficiary shall not be requisite to the surrender or assignment of this policy, or to a change of beneficiary, or to any other change in the policy. No assignment of interest under this policy shall bind the company unless the written consent of the company is indorsed hereon by the president, vice president or one of the secretaries of the company.”

“Sec. 22. No erasure or change appearing on this policy as originally printed, and no change or waiver of any of its terms or conditions or statements, whether made before or after the date of this policy, shall be valid unless set forth in an indorsement added hereto and signed by the president, vice president or one of the secretaries of the company. Notice given to or the knowledge of any agent or any other person, whether received or acquired before or after the date of this policy, shall not be held to waive any of the terms or conditions or statements of this policy, or to preclude the company from asserting any defense under said terms, conditions or statements, unless set forth in an endorsement added hereto and signed by one of the said officers.”

The effect of these rules the defendant avers is to make the written consent of the insurer essential to a completed or effectual change of beneficiaries, and that, such consent in the instant case never having been given, the terms of the will do not operate to vest the plaintiff with any right to or interest in said fund, and therefore this action is not maintainable. The intervener in each case pleads and relies upon the same provisions of the insurance contract. Plaintiffs take the position that the articles above quoted do not impose any condition precedent to the right of the insured to name a new beneficiary. The issues in the first case were submitted to the trial court upon the pleadings and an agreed statement of the facts which at the risk of some repetition we here set out in full, omitting only certain correspondence between plaintiffs and defendant after the death of the insured having, as we conceive, no vital bearing on the one question presented by the appeal.

Subject to the objections hereinafter made by either party, the following facts are agreed to in open court between the plaintiff, the defendant, and the intervener: It is stipulated and agreed that the plaintiff is the mother and assignee of Jean B. Townsend. That Jean B. Townsend is the person named as legatee under the will of William T. Sowers, as referred to in the stipulation of facts in the case of L. E. Ellis, Trustee, v. Fidelity & Casualty Company of New York, No. 20,990 Law; and that the said Jean B. Townsend was at the time of making such will the fiancée of William T. Sowers. That the intervener James M. Sowers is the brother of William T. Sowers, deceased, and was the person named as beneficiary in the policy of insurance Exhibit B (No. 4370676) as originally issued. It is agreed that the facts under which the rights of the parties in this cause are to be determined are identical with those in the cause of Ellis, Trustee, v. Fidelity & Casualty Company of New York, No. 20,990 Law, except the names of the plaintiff and intervener and the number of the policy; and that the questions for determination are identical with those in the cause of Ellis, Trustee, v. Fidelity & Casualty Company of New York (20,990 Law); and that the court may enter judgment in this cause for the plaintiff, intervener, or defendant in accordance with the findings of fact and conclusions of law in the case of L. E. Ellis, Trustee, v. Fidelity & Casualty Company of New York, No. 20,990 Law, in the district court of Iowa in and for Polk county. The facts so stipulated are as follows: Defendant is a corporation organized under the laws of the state of New York, and engaged in the business of selling accident insurance policies, and licensed to do such business in the state of Iowa. That William T. Sowers, then being a resident of the city of Des Moines, Iowa, applied to the defendant at Des Moines, Iowa, for a policy of accident insurance, and, upon the application so made, the defendant, the Fidelity & Casualty Company of New York, delivered to the said Sowers at Des Moines, Iowa, a policy of accident insurance, being No. 4370676, and that Exhibit B identified by the reporter and offered and admitted in evidence is such policy. That the said William T. Sowers paid to the defendant a premium of $25 in consideration of the issuance and delivery to him of such policy. That on the 7th day of October, 1911, the said William T. Sowers sustained an injury, which injury directly produced his death on the 9th day of October, 1911, at 1 o'clock a. m. of said day. That the injury so received by the said William T. Sowers was accidental within the meaning of the terms and conditions of the policy Exhibit B. That prior to the death of William T. Sowers a surgical operation was performed upon him for the reduction of a fracture of the thigh, which fracture was accidentally received, within the terms and conditions of the contract Exhibit B, which fracture was one of the injuries above referred to. That on the 8th day of October, 1911, and at 3:30 p. m. of said day, said William T. Sowers executed his last will and testament, which was duly admitted to probate by an order of the district court of Iowa in and for Polk county on the 4th day of November, 1911, and that Exhibit A so marked by the reporter and now offered in evidence is such will. That Robert L. Dutton is a general agent of the defendant residing in the city of St. Louis, Mo., and that at the time of the injury and death of said William T. Sowers the state of Iowa was within the jurisdiction of such agent. That on the 10th day of October, 1911, there was mailed to and received by the said Robert L. Dutton a letter, a true copy of which is marked by the reporter “Exhibit C,” which is offered in evidence. That Exhibit D, so identified by the reporter and now offered in evidence, is a reply to such letter Exhibit C by the said Robert L. Dutton. That Exhibit E, so identified by the reporter, is a true copy of the letter dated October 12, 1911, addressed to and received by the defendant company in its office in New York City, N. Y., and now offered in evidence. That Exhibit F, so identified by the reporter, is the original of a letter from the defendant, dated October 17, 1911, and now offered in evidence, and being a reply to Exhibit E. That on October 28, 1911, ...