Parker v. Des Moines Life Ass'n
108 Iowa 117
Iowa
1899
Check Treatment
WateRMan, J.-

The petition states a cause of action upon a policy of insurance issued by defendant company upon the life of one Henry Parker, and payable, in the event of loss, to plaintiff. Defendant answered, setting up various defenses in different paragraphs or divisions of its pleading. The first paragraph contained a general denial, except as to admissions specially made; the second, an admission of defendant’s corporate capacity; the third, a denial, upon information and belief, of Parker’s death “on the 11th day of November, 1895,” and of plaintiff’s ownership of the policy. The fourth division of the answer sets up the falsity of certain answers made by Parker to questions contained in the application for such insurance. Division 5 contains a charge that Parker’s death was caused by his own willful and voluntary act; and in division 6 it is averred that Parker applied for and procured the policy in suit with the 'fraudulent intent to commit suicide. Later, this answer was amended by adding an allegation that defendant company *119was incorporated as a mutual benefit association, under Acts Twenty-first General Assembly, chapter 65. Plaintiff filed a motion to strike out all of the fourth, fifth, and sixth divisions of the answer, upon the following grounds: “All of the fourth, fifth, and sixth paragraphs, — that is to say, all that portion of defendant’s answer beginning with the firstword in thefirst line on the second pageof said answer and endingwith the word 'void’ in the fifteenth line of the sixth paragraph on the fourth page of said answer, — and also the application attached to said answer, which is made a part thereof: (1) All the averments and allegations in said fourth paragraph constitute a pleading or pleadings based upon a written application alleged to have been signed by the said insured ^pd given to said company, in consideration and upon the faith of which the policy sued upon in this action was issued to said Henry Parker, and that neither said application, nor a copy thereof, was ever attached to said policy nor indorsed thereon. (2) All the averments and allegations in the fifth paragraph of defendant’s answer are immaterial, irrelevant, incompetent, and constitute • no defense, nor any part of a defense to plaintiff’s petition. (3) That all the averments and allegations in the sixth paragraph of said answer are immaterial, irrelevant, incompetent, argumentative, and matters of evidence. (4) That the application, a copy of which is attached to said answer, nor a copy thereof, is not now, and never was, attached to said policy nor indorsed thereon. (5) Plaintiff specially moves that the following be stricken out of defendant’s amended and substituted answer, viz.: All of that portion of said answer beginning with the word Are,’ in the twenty-second line of the fourth paragraph of the second page, and ending with the word 'no,’ in the second line of the third page of said answer, for the reason that the same is immaterial, irrelevant, redundant, and matter of evidence.” The last ground refers to the answers given by Parker in his application for the policy. By agreement this motion was to stand both as a motion and a *120demurrer. It' was sustained by the court, and defendant’s exception to tbe ruling was duly entered. Thereafter, substantially the same pleading was filed as a second amended and substituted answer. The only practical difference is that it contains the matter set up in the améndment to the first answer, in which it is averred that it is a mutual benefit association, doing business “[as provided in chapter 65 of the Acts of the 21st General Assembly of the State of Iowa]”. This answer was attacked by motion to strike similar to the motion already set out, except that it also asks to have stricken the language which we have enclosed in brackets, and also the application attached to the answer, and, as an additional ground, charges that the matter set up is the same as was formerly pleaded. This motion was sustained as, to divisions 5 and 6^ which were the same as in the original answer, defendant excepting. Plaintiff then demurred to the fourth division, which is identical with the fourth paragraph of the original answer, and the demurrer was sustained, defendant again preserving its exception. Defendant refusing to plead further, judgment was rendered in plaintiff’s favor for the amount claimed.

1 II. It is first urged by appellant that there was enough remaining in the answer, after the motion and demurrei were sustained, to put plaintiff on proof of her claim, and that it was therefore error to render judgment in her favor. Appellant claims that the answer contains a denial of Parker’s death, but to this ’we cannot assent. The third paragraph, to which reference is made, merely denies that Parker died on November 11, 1895. In other divisions of the same pleading his death is admitted. There was, however, remaining in the answer, a denial that plaintiff was the owner of the policy sued upon. It is insisted by appellee that the record is such that defendant is not ■ entitled to make this point, for no appeal was taken 2 from the judgment. The notice of appeal, omitting ■ ' the caption, is as follows: “To Said plaintiff and *121her Attorney' F. P- McGinn, and J. H. Edens, Clerk of Said Court: You, and each of you, are hereby notified that said defendant hereby appeals from the rulings and judgments of the district court rendered on the 24th day of-September, 1896, the 16th day of December, 1896, and the 28th day of April, 1897, respectively, to the supreme court of the . state of Iowa. Dated, Clinton, Iowa, May 8, 1897. A. EL Evans, L. A. Ellis, and F. W. Ellis, Attys. for Defendant.” On September 24, 1896, the order was made sustaining the first motion. December 16th the second motion was sustained in part, as we have stated. We find no order or judgment of date April 28, 1897. The demurrer was sustained, and judgment awarded, on the sixth of April, and the entry thereof was made on May 8th. Appellee claims that this does not show an appeal from the judgment. Notwithstanding the discrepancy in the dates, we think the notice sufficient to admit of appellant presenting here its exception to the judgment. Kennedy v. Rosier, 71 Iowa, 671. It 3 was error for the trial court to summarily enter judgment, as though no pleading was on file for defendant, with defendant’s general denial, and special denial of plaintiff’s interest in the policy, still standing.

4 III. Appellee contends that, by pleading over after the ruling on the first motion, defendant has waived its right to be heard on the exceptions then taken, and, as we understand, it is also claimed there is no ground for complaint of the court’s action on the amended and substituted answer, as that was but a re-pleading of matter which had been formerly stricken, and it was proper, on that ground, to strike the pleading from the files.’ But we are by no means sure that the court so treated this answer. It is true that in sustaining the motion the court said that divisions 5 and 6 were'stricken, “on the ground that they were the same paragraphs which were stricken by Judge House.” But he at the same time overruled the motion as to the fourth division, which was identical with the fourth *122division of the original answer, to which the first motion to strike was also sustained. However this may be, if the second answer was, in its fourth, fifth, and sixth divisions, but a repleading of matter which had before been stricken, it would not constitute a waiver by defendant of its exception to the rulings on the first motion, and the questions raised by the attack on each of these pleadings are the same. Defendant was not obliged to appeal directly from the ruling on the first motion, but was. entitled to proceed to judgment, and present its exceptions to the intermediate orders, on appeal from the final result. Jones v. Railroad Co., 36 Iowa, 68.

5 IV. It is insisted by appellant that, as it does not affirmatively appeal* in the answer that a copy of the application was not indorsed upon, or attached to, the policy, as required by section 2, chapter 211, Acts Eighteenth General Assembly, it was error to sustain the demurrer to the defense set up in the fourth division. The thought seems to be that the burden was on plaintiff to show that this statute was not complied with. This section, after requiring insurance companies to indorse upon, or attach to, each policy the application made therefor, says, “The omission so to do shall not render the policy invalid, but if any company or association neglects to comply with the requirements of this section, it ' shall forever be precluded from pleading, alleging or proving such application or representations' or any part thereof * * * in any action on such policy * * *” The indorsement of a copy of the application upon the policy, or its attachment thereto, being thus made a necessary foundation for pleading the falsity of statements made therein, it follows that defendant must supply this basis by an allegation that the requirements of this statute have been complied with. This not being done in the answer, the demurrer was properly sustained.

*1236 *122V. The fifth division of the answei* sets up as a defense the suicide of the assured. In the case of Seiler v. Associat*123ion, 105 Iowa, 87, we bold that the suicide of the assured would not operate to avoid the policy as against a, beneficiary named therein, where, as here, the policy contained no provision of forfeiture in such case. It is sought to distinguish that case from the one at bar, on the ground that the defendant here is an assessment company organized under chapter 65, Acts Twenty-first General Assembly, and that the assured had a right, under the law, with the permission of the company, to change the beneficiary without the latter’s consent. We are not able to see that this distinction alters the principle announced in the Seiler Gase. This policy was made payable to plaintiff. It does not appear- that any change of beneficiaries' was ever made. TJpon Parker’s death, plaintiff took by contract, and not by inheritance from the assured. This view has support in Patterson v. Insurance Co., 100 Wis. 118 (75 N. W. Rep. 980), where a similar question was passed iipon, and in which the court says: “Such a beneficiary has an actual subsisting interest in the policy, subject to the right of the insured who has paid the premiums to vest it elsewhere; but, until such action by the assured, the interest of the beneficiary is-such a vested, subsisting interest as would pass to the administrator of the beneficiary in case of his death. Such being the case, it falls directly within the principle of the New York and Minnesota cases [there referred to], which hold that, as against such a beneficiary, suicide is not a defense, in the absence of a provision in the policy.” The principle upon which we rested the decision in the Seiler Gase controls here. Plaintiff’s interest was acquired by contract. The fact that it could have been devested by the assured does not matter, for that was not done. This case, as well as the Seiler Gase, is to be distinguished from Ritter v. Insurance Co., 169 U. S. 139 (18 Sup. Ct. Rep. 300), relied upon by defendant. We need not repeat what is said on this subject in the Seiler Gase, but we avail ourselves of the opportunity to add to the authorities there cited, *124in support- of the coublusiou reached, not only the Wisconsin case from which, we have quoted, but also Morris v. Assurance Co., 183 Pa. St. 563 (39 Atl. Rep. 52). Both of these cases appeared after the opinion in the Seiler Case was filed. The motion to strike this division of the answer was properly sustained.

I VI. The sixth division of the answer set up fraud on the part of Parker in procuring the policy. It was alleged that he secured the same with the intent at the time to commit suicide. It needs no argument to show that a secret intent of this kind would amount to a fraud; and, as fraud vitiates all contracts, this defense, if established; would defeat a recovery on the policy. Being void in its inception, no rights would accrue under the contract to any person. Patterson v. Insurance Co., supra.

8 VII.. 'Appellee’s motion to dismiss the appeal is not well taken. What we have already said will indicate, in part, our reasons for this ruling. We only need add that the assignments of error are sufficiently specific, and that, after argument on its merits, an appeal will not be dismissed, as a matter of course, because the abstract of record is not filed within the time fixed by. the rules of this court. Por the reasons assigned the judgment will be REVERSED.