167 Iowa 239 | Iowa | 1914
It is alleged by plaintiff, substantially: That the certificate was issued to deceased June 21, 1899. He had paid all assessments and dues to April 11,1904, and thereafter plaintiff paid such assessments and dues to and including the year 1911 for and on behalf of said Nathan. That on April 11, 1904, Nathan absented himself from his family and from his usual place of residence, and has concealed his whereabouts, without known cause, and such absence has continued a period of seven years, and that by reason of said absence said Nathan Keith is deemed to be dead, and said plaintiff herein now alleges the fact to be that said Nathan Keith is dead — the exact time and place of his death being unknown to plaintiff. It is further alleged: That at the expiration of the seven years’ absence of said Nathan a right of action accrued to plaintiff under the certificate, and that thereafter she furnished to said defendant satisfactory evidence of the death of said Nathan and demanded payment of the amount due her as beneficiary. That at the time of the death of said Nathan he had performed every condition required of him under said
In reply to your inquiry of the 28th January, hereby advise that it is customary to consider a member dead, and to pay his claim, after continuous disappearance of seven years’ duration. If you have reason to believe that your father is dead, it would probably be worth your while to keep his certificate in force for the next six years; but if you have any reason to think that he is still alive, and is concealing his whereabouts, I can hardly advise you to do so, as, no matter how much money you may expend in this way, he would be at liberty, should he return, to alter the certificate in a manner compatible with the provisions of our by-laws, as your payment would give you absolutely no claim on the certificate during the lifetime of the member. Yours truly,
C. W. Hawes, Head Clerk M. W. A.
Plaintiff further alleges: That her said request for advice was in writing, and the same is in the possession of defendant; hence she cannot attach a copy hereto. That, acting upon the contents of said letter, the plaintiff kept said certificate, or policy, in force, by paying the assessments and camp dues, for more than six years mentioned in said letter, and up to the time of the commencement of this suit, and by reason of her so paying said assessments and camp' dues, as advised in said letter, and relying upon the representations set forth therein, keeping said certificate, or policy, in force for the period stated therein, the defendant is now estopped from denying its liability on the certificate, or policy, sued upon, and is estopped from setting up or relying upon the defenses, or any one thereof, set out in its answer.
To this defense plaintiff demurred, on the ground that:
The by-law set out in said third affirmative defense in said answer, as amended, as shown by said pleading, was passed and adopted by said defendent society long subsequent to the issuance of the benefit certificate sued hereon, and is an attempt on the part of said defendant society to change and modify the terms of said insurance contract and the time and manner of payment thereof, from the date of the death of the insured, as presumed by law, until the full term of his life expectancy, as shown by the National Fraternal Congress Table of Mortality, shall have expired, and is unreasonable and invalid as a defense. (2) That at the time of the issuance of the benefit certificate herein sued on, and particularly at the time of the passage of the by-law set out in said third affirmative defense and amendment in said answer of said defendant, disappearance, and continuous absence of the insured for a period of seven years as set out in the petition of said plaintiff, the laws of the state of Iowa permitted letters of admin
The demurrer was sustained, to which ruling the defendant duly excepted. On December 10, 1912, the defendant withdrew its general denial contained in the answer, also withdrew the first and second affirmative grounds of defense in its answer, and elected to stand on the balance of its answer, to which the demurrer had been filed and sustained. No further pleadings were filed by defendant.
On the same day, December 10, 1912, the cause came on for further hearing and trial before the court, upon the request of the plaintiff, asking the right to go to the jury on the question as to the date of Nathan Keith’s death, and that the jury be requested to make special findings as to the date of his death; and the court, having heard said request and arguments of counsel, and being fully advised, overruled said request of the plaintiff, on the ground that there is no issue made by the pleadings presenting that question; and thereafter, and upon the same day, the cause came on for further hearing and trial upon the pleadings in this cause, and the court, having examined the records and being advised, and the defendant having refused to plead or answer further, finds for the plaintiff on the pleadings for the sum of $2,000, with interest and costs.
The question at this point really is, though not argued by counsel for either side, whether under the circumstances of this c'ase the allegations as to estoppel contained in the so-called reply are denied by operation of law, as though it was in fact a reply and the matters therein properly pleaded as such, or whether it should be treated as a part of, or in connection with, plaintiff’s petition. It is urged by appellant that, after the demurrer to count 3 of the answer had been sustained and the other counts withdrawn, there was nothing in defendant’s pleadings to which a reply could apply, and this we think is true. But, as before stated, this so-called reply still remained a part of the record and of plaintiff’s ease.
Section 3576 of the Code provides that there shall be no reply, except whére a counterclaim is alleged, or where some matter is alleged in the answer to which the plaintiff claims to have a defense by reason of the existence of some fact which avoids the matter alleged in the answer. Section 3622 provides that every material allegation in a pleading, not controverted by a subsequent pleading, shall, for the purposes of the action, be taken as true; but the allegations of the answer, not relating to a counterclaim, and of the reply, are to be deemed controverted. An allegation of value, or amount of damage, shall not be held true by a failure to controvert it, etc.
With this out of the record, there was no prayer for cancellation of the mortgages, and no reference of any kind made to them in the petition.
The inference is that, had there been no motion to strike, the allegations of the reply, though irregular, would have been considered.
Under the record in the instant ease, we are of opinion that there was no denial, by operation of law or otherwise, of the allegations in the so-called reply, but that we must consider such allegations in connection with, and as a part of, the petition. It was plaintiff who demanded a jury, and of
Our holding on the question of estoppel decides the ease, and it is not necessary to discuss the other questions.
The judgment is — Affirmed.