Wall v. Mut. Life Ins. Co. of N.Y.

• Decision Date: 06 March 1934
• Docket Number: No. 42217.,42217.
• Citation: 253 N.W. 46,217 Iowa 1106
• Parties: WALL v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Iowa Supreme Court

217 Iowa 1106

253 N.W. 46

WALL

v.MUTUAL LIFE INS. CO. OF NEW YORK.

No. 42217.

Supreme Court of Iowa.

March 6, 1934.

Appeal from District Court, Johnson County; H. D. Evans, Judge.

Suit at law on insurance policy issued by the defendant company, claiming a double liability by reason of the death by accidental means of Joseph Wall, the husband of the plaintiff. From a motion striking certain allegations in the reply, the plaintiff appeals.

Affirmed.

E. D. Perry, of Des Moines, and Frank F. Messer and T. M. Fairchild, both of Iowa City, for appellant.

Dutcher, Walker & Ries, of Iowa City, for appellee.

ALBERT, Justice.

Plaintiff's petition was the ordinary action on an insurance policy for the death, by accidental means, of her husband. The answer of the defendant, aside from a general denial, pleaded in substance that, under the provisions of the policy and the law, the policy was not in force at the time of the death of the said Joseph Wall. By way of reply plaintiff pleaded, first, that the company had no right to forfeit or suspend said policy, because the notice provided for in section 8959 of the Code was not given in the manner prescribed by said section and at no time did the defendant ever give said notice to the assured as was prescribed by said law; second, that under the terms of the policy and under certain conditions the policy was to participate in the surplus of the company, and in the second division of the reply it was pleaded that it was the custom of the company to give written notice in advance of the due date of the amount of the premium and the amount of the dividend apportioned to such policy, and also stating the gross premium less the dividend apportioned to such policy and payable on the same date. The amount of the dividend was unknown to the plaintiff and the defendant never informed the insured or the plaintiff of the amount of such dividend payable at the end of the first policy year. Plaintiff also denied that the defendant company ever gave any written or other notice to the insured of the amount of the dividend apportioned to such policy. Later, in the same division, it is alleged that the insured never received notice “of the amount of the dividend apportioned to said policy and by the defendant payable to the insured at the end of the first policy year.” Later it is averred that the failure to give written notice to the insured of the date of said premium “and of the amount of the annual dividend thereon which insured could have used in reduction of the gross premium when due” was the cause of the insured's not paying the premium.

On motion the court struck all the above allegations from the second count of plaintiff's reply, and plaintiff stood on this ruling and appealed.

[1] The first question raised is whether or not, under section 8959 of the Code (1924), co-ordinated with section 8673, the notice therein provided is necessary in this case to a forfeiture or suspension of the policy. This policy was dated June 14, 1924. It is the ordinary life policy for $5,000, and in addition provides for double indemnity if the insured die from external, violent, and accidental means, within sixty days after the date of such bodily injury. The premium on the policy was $141.07, and the first premium was paid on the issuance of the policy, and the policy provided for “a like amount to be paid on each 14th day of June hereafter until the death of the insured.” As to the payment of premiums, the policy provided:

“All premiums are payable in advance, at said Home Office * * * on or before date due. * * * A grace of thirty-one days shall be granted for the payment of every premium after the first during which period of grace the insurance shall continue in force. * * * If any premium be not paid before the end of the period of grace, then this Policy shall immediately cease and become void, and all premiums previously paid shall be forfeited to the Company except as hereinafter provided.”

The due date of the second premium was the 14th of June, 1925. Under the terms of the policy, adding the days of grace given, the last day on which the premium could be paid, under the terms of the contract, would be the 15th day of July, 1925. The insured met his death on the 14th day of August, 1925. Passing the statutory provisions hereinafter referred to, under the terms of the contract, this policy had lapsed and was forfeited at the time of the death of the insured, but the plaintiff insists that under section 8959 of the Code (1924), notwithstanding the provisions of the policy, the same could not be forfeited unless the provisions of said section, together with those of section 8673 of the Code, were complied with. Without these provisions of the Code there is no question but that the insurance company had the right to make provisions for forfeiture and voiding of policies similar to the ones contained in this policy.

In dividing our Code into chapters, life insurance companies are provided for in one chapter (chapter 398), and all insurance companies other than life are treated of in a separate chapter (chapter 404). In 1880, the Eighteenth General Assembly of this state, by chapter 210, passed an act entitled: “An Act to Secure Policy-Holders in Fire Insurance Companies From Unjust Forfeitures of Policies.” This was the basis of what is now section 8959 of the Code, but applies only to fire insurance companies. On the adoption of the Code of 1897, section 1727 enlarged the scope of the aforesaid enactment and provided that:

“No policy or contract of insurance provided for in this chapter (404) shall be forfeited or suspended for nonpayment of any premium, assessment or installment provided for in the policy, * * * unless within thirty days prior to, or on or after the maturity thereof, the company shall serve notice in writing upon the insured that such premium, assessment, or installment is due or to become due, stating the amount, and the amount necessary to pay the customary short rates, up to the time fixed in the notice when the insurance will be suspended, forfeited, or canceled, which shall not be less than thirty days after service of such notice. * * *”

The section provides that the notice may be served personally or by registered mail. This provision, of course, by...