Citation Numbers: 190 Iowa 1227
Judges: Evans, Preston, Salinger, Weaver
Filed Date: 10/26/1920
Status: Precedential
Modified Date: 7/24/2022
— Plaintiff alleged that, on December 14, 1916, defendant issued to her husband a certificate of membership, and that he was a member of that association at the time of his death; that the certificate provided that, if death occurred within one year from date of admission, the sum of $790 would be paid to the beneficiary; and that Swoboda died April 13,1917.. Plain
In reply, plaintiff alleged that the application was taken by one Secord, a resident soliciting agent, duly authorized by defendant to obtain new members and receive applications; that, at the time said application was made out, Secord was accompanied by a deputy or field agent of the supreme president of the association; that said deputy was present and assisted said agent in preparing the application; that deceased informed said agent or deputy that his occupation was that of a railroad switchman; that deceased was not asked to read the application after it was filled out, and did not read it before signing it; that deceased never knew, and plaintiff did not know until his death, that the agent had not correctly written into said application the answers given by deceased; that he paid the fees asked at the time of the making of said application, and thereafter received the certificate of membership sued on; that deceased did not participate in the fraud of the agent. Notwithstanding the manner in which the application was made out, and the dispute in reference thereto, defendant concedes that deceased was a member of the association, and admits that he had paid all premiums up to the time of his death, and, as said, claims that, even though it be found that the agents incorrectly recorded the answers in the application, this could amount only to a waiver as to his membership.
1. We shall spend but little time on the question as to
2. The more important question, and really the vital point in the case, as we view it, is whether plaintiff is entitled to the full amount of the certificate, or only one tenth, as contended by defendant. The position of appellee is that plaintiff became a member of the association as a common laborer, and under that classification, and that,1 since there was no change in his occupation after the application was made and after he became a member, up to the time of his death, or, in the language of the by-laws, he did not “hereafter * * * engage in any of the occupations classified as prohibited,” the defendant was not entitled to settle the loss in full on a percentage of one tenth, as contended by the defendant. Other provisions of the by-laws not heretofore set out should be referred to. One provides:
“Section 93. Entering Prohibited Territory and Conditions, Occupations, or Classes. If any holder of a benefit certificate in this society shall hereafter * * * engage in any of the occupations, * * * classified as prohibited in these laws, the entering upon such occupation * * * shall totally exempt this association from'any and all liability to such member or his beneficiaries on account of such disability or death, except as provided in the event of death by suicide,” etc.
‘ ‘ Section 94. Suicide Classification. In event of death of a member * * * while engaged in an occupation classed as
This Division 7 has been before set out.
“Section 95. The rate of assessment under all classifications shall be the same but in valuing the certificate for the purpose of determining the amount of benefits due thereunder, the cause of death or injury and the place of residence shall determine the classification under which the benefits shall be paid as well as the classification fixed by the medical director at time of entry.”
It is contended by appellant that, conceding that deceased was not a party to any fraud on the society by its agents, and that there was a waiver, still deceased obtained only a membership in the society, and that his membership was limited and defined by his contract; and further, that, this being so, the amount of his recovery was determined by his occupation .at the time of death, and upon the classification of risk at that time, and not on the classification at the time of entry; therefore, since, at the time of death, he was engaged in a prohibited occupation, his beneficiary was entitled only to one tenth. It is argued for appellant that, under the laws of defendant society, a member might have been accepted under an occupation classified as extrahazardous, and afterwards pass into an occupation classified as ordinary, and the benefit due would be such as the occupation at the time of death warranted. This may be so in some cases. In the instant case, deceased was not accepted under an occupation classified as extrahazardous. His actual occupation of switchman was entirely prohibited. He was, however, admitted as a laborer. There are cases holding that, where there has, in fact, been a change in occupation after the insured becomes a member, the classification at the time of death would apply; but that is not this case. The instant case does not involve the rights of a beneficiary where the holder of a certificate had changed his occupation to one prohibited. Either the certificate was void, and the holder never became a member, or, by reason of waiver and estoppel on the part of defendant, he became a member entitled to be classed as engaged in an ordinary .occupation. If the amount of the policy may be reduced, it must be because of the provisions of Sections 93, 94,
The court submitted to the jury for determination the question as to whether there was fraud in the application. Of course, if the jury had found there was fraud, the plaintiff would not be entitled to anything. The trial court, construing the contract as we do, did not submit the question as to the defendant’s claim in regard to the reduced amount, but instructed that, if there was no fraud by deceased, and plaintiff was entitled to recover, the amount would be the full face of the policy, or $790. Appellant complains of the failure of the court to instruct in regard to the lower amount, and of the court’s refusal to give an instruction offered by the defendant on that subject. As we have indicated, we think the trial court was right in this.
Some other minor matters are complained of, but they are not controlling. The judgment is — Affirmed.