Wall v. Mutual Life Ins. Co. of New York
| Decision Date | 06 February 1940 |
| Docket Number | 44821. |
| Citation | 289 N.W. 901,228 Iowa 119 |
| Parties | WALL v. MUTUAL LIFE INS. CO. OF NEW YORK. |
| Court | Iowa Supreme Court |
Appeal from District Court, Johnson County; Jas. P. Gaffney, Judge.
Suit in equity on policy of life insurance, to reform policy to show true date when insurance became effective, and to recover on policy as thus reformed. On trial to the court decree was rendered for plaintiff, and defendant appeals.
Reversed.
Dutcher, Ries & Dutcher, of Iowa City, for appellant.
Stipp Perry, Bannister & Starzinger, of Des Moines, for appellee.
On June 20, 1924, Joseph P. Wall signed an application for a $10,000 policy of insurance on his life with the defendant company. This policy issued but was not delivered. On June 20, 1924, this policy came into the hands of the soliciting agent, Thomas J. Boyle, but it was returned to the defendant's home office, and on the same day Wall executed a second application for a $5,000 policy, with accident benefits. This second application was dated June 10, 1924. On July 1 or 2, 1924, the new policy was received by the agent, dated June 14, 1924, and this is the policy in suit.
One of the provisions of the policy was as follows: " The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health, nor unless also, the policy shall have been delivered to and received by me during my continuance in good health; * * *"
This policy was sent to the Davenport office of the defendant where it was received June 30, 1924. There was the further provision in the policy that a grace period of thirty-one days should be granted for the payment of every premium after the first, during which period the insurance should continue in force. The policy was delivered to Wall on or about August 5, 1924, according to plaintiff, but defendant claims it was delivered on or about July 1, 1924.
On August 14, 1925, the insured Joseph P. Wall came to his death by violent, external and accidental means. Wall did not pay the second premium on the policy, and the only premium paid was the first premium.
On September 29, 1926, plaintiff-the beneficiary named in the policy-filed a petition in a law action on the policy, to which defendant filed answer, and plaintiff filed a reply. A motion to strike several provisions of the reply was sustained February 4, 1933. An appeal was taken to this court and the ruling of the district court was affirmed in 1934. Wall v. Mutual Life Ins. Co., 217 Iowa 1106, 253 N.W. 46.
In May, 1934, plaintiff substituted for the petition formerly filed a petition in equity asking reformation of the policy and judgment for the proceeds. The answer of the defendant to the amended and substituted petition in equity is, first, a general denial, except that the defendant admits its capacity as a life insurance company, the death of Joseph P. Wall, the issuance of the policy, and that it (the defendant) denied liability. Defendant pleads lapse of the policy and that the contract of insurance which was issued was the true contract between the parties; the statute of limitations (but this was stricken on motion); alleges the negligence of the insured in not ascertaining that the contract as written did not express the true agreement between the parties; and pleads a bar to the action for reformation by reason of the adjudication of the issues raised by the original petition and the appeal therefrom. To this reply was filed.
It is claimed, and not seriously disputed, that on August 4, 1924, the insured paid half of the premium and gave a note to Boyle, the agent, for the balance. This was received by the branch office at Davenport on August 5, 1924. Defendant claims that the policy had lapsed at the time of the death of the insured, but the plaintiff asserts that, by reason of the provision in the policy above set out, at the time of death the year with the days of grace provided for had not expired and that said policy was not in force until the payment which was made on August 4 or 5, 1924. This is the principal controversy in the case.
On August 1, 1935, defendant filed a motion to dismiss the substituted petition in equity as amended, and on November 13, 1935, plaintiff filed a motion asking, under the provisions of section 11131 of the Code, to have the court determine the law prior to trial. On March 3, 1936, the court filed ruling on both motions, with findings, overruling the motion to dismiss, and determining as a matter of law as follows:
To this ruling due exceptions were taken by the defendants.
Trial was had beginning on October 4, 1937, and on the 19th day of November, 1938, judgment and decree were filed reciting the facts above stated and finding that the policy issued did not take effect, in so far as binding the defendant company was concerned, until August 5, 1924; that the insured on such date was in good health; that the policy bore date of June 14, 1924; that the first payment was made, and that the insured was entitled to receive in consideration of such premium a full year's insurance, but that he did not receive a full year's insurance plus the thirty-one days of grace, but received approximately only ten months' insurance; that the defendant company has not credited the insured's policy on the payment of the second premium payment with the unused amount of premium during the first year of the policy contract, and has also failed to tender into court the amount of premium for which insured never received any benefit; that the equities are with the plaintiff and she is entitled to recover. The court held in another division of the decree that the determination of the law issues on March 3, 1936, was final as to the rights of the litigants, it not having been appealed from. Judgment was rendered for the sum of $9,858.30, with interest at six per cent per annum from and after August 14, 1925, and for costs.
From this decree defendant appeals.
The plaintiff, in support of the ruling of the court, alleges that the supreme court is without jurisdiction to hear and determine this appeal, and that the appeal should be dismissed for the reason that the decree which adjudicated all issues of law on March 3, 1936, was final and binding on the parties and is res adjudicata, not having been appealed from; and that there can now be no controversy over the facts, notice of appeal in this case not having been filed until more than three years after the decree of March 3, 1936, and that such decree determined the whole controversy and no appeal will now lie.
We cannot agree with the plaintiff in this contention. Cases cited in support of her view do not determine the matter. Section 11131 of the Code, upon which plaintiff relies, follows the provisions in section 11130, providing for motion to dismiss, and immediately precedes section 11132 referring to plea in bar or in abatement, and reads as follows:
This section has not often been considered by this court. In the case of Ater v. Mutual Ben. Dept. of Order of Railway Conductors, 222 Iowa 1390, 271 N.W. 517, both parties treated the motion as a demurrer and appeal was taken therefrom. In First National Bank v. Board of Sup'rs, 217 Iowa 702, 247 N.W. 617, 250 N.W. 887, the proceedings were not under section 11131, but under sections 11130 and 11132. The section is mentioned in the case of Duvall v. Duvall, 215 Iowa 24, 244 N.W. 718, 83 A.L.R. 1242, but merely in connection with section 11130, and in this case there was a motion to dismiss.
Plaintiff cites In re Estate of Dodge, 194 Iowa 572, 189 N.W. 759, which was a probate proceeding and prior to the enactment of the section under consideration. Plaintiff also refers to the case of Buckler v. Safe Deposit & Trust Co., 115 Md. 222, 80 A. 899, citing a Maryland statute similar to ours. There was, however, only one question of law in the case and it was determinative. Such being the case, the order was held appealable. The cases of Clifford v. Montgomery, 202 Ala. 609, 81 So. 551, and Hill v. Cronin, 56 W.Va. 174, 49 S.E. 132, do not support plaintiff's contention.
Plaintiff insists that, for all practical purposes, the decree of March 3, 1936, determined the case, citing Dorman v. Credit Reference & Reporting Co., 1932, 213 Iowa 1016, 241 N.W 436.That case involved the appealability of an order overruling a motion for more specific statement, and is based on the holding that such an order is appealable when the ruling deprives the movant of a right which cannot be...
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