Wood v. Brotherhood of American Yeomen

140 Iowa 98 | Iowa | 1908

Sherwin, J.

i. Benefit in-pleadings: direction of verdict. — The verdict for the defendant was directed on the ground that plaintiffs’ action was founded on the second certificate, and that the evidence did not show the acceptance of said certificate by the insured. Aside from the substituted pleadings of the plaintiff, the record does not clearly show whether plaintiffs were relying solely on the second certificate or not, and it must be admitted that the trial court had some warrant for stating that recovery was sought on the second certificate only. But the first certificate was fully set out in the petition and answer and in the former it was alleged that the second certificate was, in effect, the same as the first one, and that the insurance upon the life of Wood was continuously in force by virtue of both. It is true the first certificate was not offered in evidence, but that was unnecessary. It had been set out in full in the pleadings on which the case was being tried, and hence there was no occasion to put it in evidence. It was admitted by the defendant in its answer, and for all purposes of the case that was sufficient. Admissions made in the pleadings forming the issues being tried are to be considered, without further action. Shipley v. Reasoner, 87 Iowa, 555.

z. Same: acceptance of certificate by insured. Both certificates provided against liability in case of suicide, but there was no evidence before the jury on that question. We are also of the opinion that a verdict should not have been directed, even if the plaintiffs had in fact been relying solely on the second certificate. While it is evident that its changed conditions would require an acceptance thereof before it could become a contract between the insured and the defendant, it is also true that there was evidence tending to show an acceptance, and sufficient, we think, to take the case to the jury on that question. The certificate was found among the private papers of Wood and in his private box in the bank. It may have been placed there by his son, as the evidence tends to show; but, if such was the fact, we think there is a presumption that it was put there by authority of his father. There is nothing in the record showing that a written acceptance was required by the laws of the defendant, and a failure to so accept it is not of vital importance.

There was error in directing a verdict for the defendant, and in rendering judgment thereon.. Reversed.