Plunkett v. Hopley

Supreme Court of Iowa

Plunkett v. Hopley

226 N.W. 772, 208 Iowa 1042

CourtSupreme Court of Iowa

DecidedSeptember 24, 1929

DocketNo. 39674.

StatusPublished

This text of 226 N.W. 772 (Plunkett v. Hopley) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Plunkett v. Hopley, 226 N.W. 772, 208 Iowa 1042 (iowa 1929).

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Opinions

Morling, J.

The note sued on is in ordinary form, dated and payable at Atlantic, Iowa, names plaintiff (J. R. Plunkett) as payee, and is signed by the defendant. Defendant, admitting he signed the note, alleges that it was given for a policy of insurance upon his life, and was secured by misrepresentation, on discovering which he rescinded the contract. The only evidence in the case is the note, and plaintiff’s statement in testimony that it was given for premium on a life insurance policy issued and delivered to defendant. Defendant moved for, and obtained, a directed verdict, on the ground that the note was given for insurance, and did not show that fact on its face. He says here that his “sole and only contention” “is that, the evidence having shown that said note was given for life insurance, and as shown by the note itself, * * * said note did not have on its face that it was given for insurance, and therefore was not collectible, under the laws of the state of Iowa.” He relies on Section 8958, Code of 1927:

“All notes taken for policies of insurance in any company doing business in the state shall state upon their face that they have been taken for insurance, and shall not be collectible unless the company and its agents have fully complied with the laws of the state relative to insurance. ’ ’

The history of this legislation may be traced in Laws of the Twelfth General Assembly, Chapter 138, Section 25; Code of 1873, Section 1146; Code of 1897, Section 1726. We think it evident that the statute does not say or mean that a note taken for insurance shall be void or uncollectible if it does not state on its face that it is taken for insurance. The requirement that such notes shall so state is, as to the point now under consideration, “to discourage unauthorized companies from doing business in this state” (Cook v. Weirman, 51 Iowa 561, 562) ; to protect the assured against liability because of negotiation to holders in due course of notes given to unauthorized companies; and to give to prospective purchasers of such notes notice of defense for such *1044 possible illegality. Compliance “with the laws of the state relative to insurance” has reference to the laws regulating such insurance, of which the provision in question was made a part by the Code of 1873. The provision could not have been intended to be so wholly purposeless as the making a note given for insurance void simply because it does not say it was given for insurance.

Though the defense is not further pressed, yet we think it incumbent upon us to say that the word “unless,” as used in the statute, means “if it be not that,” or “if it be not a fact that,” or `~ without the case that'' (Century Dictionary unless;" March's Thesaurus Dictionary 195, 677; Webster’s New International Dictionary “unless”), rather than “except.” We think the statute is not intended to prescribe a general rule of uncollectibility of insurance notes, with exception in the case of an affirmative showing by plaintiff of full compliance with the insurance laws. The presumption of law is of legality of conduct, rather than illegality; and this applies to the business of corporations, foreign as well as domestic. 22 Corpus Juris 107, 108; 14a Corpus Juris 1358, 1385; Mt. Arbor Nurseries v. Gurney S. & N. Co., 46 S. D. 234 (191 N. W. 835); McIntosh Livestock Co. v. Buffington, 116 Ore. 399 (241 Pac. 393); 12 Ruling Case Law 101; Northrup v. A. G. Wills Lbr. Co., 65 Kan. 769 (70 Pac. 879); Meaker Galvanizing Co. v. McInnes & Co., 272 Pa. St. 561 (116 Atl. 400); McClarran v. Longdin-Brugger Co., 24 Ohio App. 434 (157 N. E. 828); Langworthy v. Garding, 74 Minn. 325 (77 N. W. 207); Missouri Pac. R. Co. v. Prude, 265 U. S. 99, 101 (68 L. Ed. 919, 928). See McKinley-Lanning L. & Tr. Co. v. Gorden, 113 Iowa 481, 484. We are of the opinion that it was not the intention of the legislature in the case of notes given for insurance to reverse this presumption.&emdash;Reversed.

Evans, Faville, De Graee, Kindig, Wagner, and Grimm, JJ., concur. Albert, C. J., and Stevens, J., dissent.

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Morling, J.

The note sued on is in ordinary form, dated and payable at Atlantic, Iowa, names plaintiff (J. R. Plunkett) as payee, and is signed by the defendant. Defendant, admitting he signed the note, alleges that it was given for a policy of insurance upon his life, and was secured by misrepresentation, on discovering which he rescinded the contract. The only evidence in the case is the note, and plaintiff’s statement in testimony that it was given for premium on a life insurance policy issued and delivered to defendant. Defendant moved for, and obtained, a directed verdict, on the ground that the note was given for insurance, and did not show that fact on its face. He says here that his “sole and only contention” “is that, the evidence having shown that said note was given for life insurance, and as shown by the note itself, * * * said note did not have on its face that it was given for insurance, and therefore was not collectible, under the laws of the state of Iowa.” He relies on Section 8958, Code of 1927:

“All notes taken for policies of insurance in any company doing business in the state shall state upon their face that they have been taken for insurance, and shall not be collectible unless the company and its agents have fully complied with the laws of the state relative to insurance. ’ ’

The history of this legislation may be traced in Laws of the Twelfth General Assembly, Chapter 138, Section 25; Code of 1873, Section 1146; Code of 1897, Section 1726. We think it evident that the statute does not say or mean that a note taken for insurance shall be void or uncollectible if it does not state on its face that it is taken for insurance. The requirement that such notes shall so state is, as to the point now under consideration, “to discourage unauthorized companies from doing business in this state” (Cook v. Weirman, 51 Iowa 561, 562) ; to protect the assured against liability because of negotiation to holders in due course of notes given to unauthorized companies; and to give to prospective purchasers of such notes notice of defense for such *1044 possible illegality. Compliance “with the laws of the state relative to insurance” has reference to the laws regulating such insurance, of which the provision in question was made a part by the Code of 1873. The provision could not have been intended to be so wholly purposeless as the making a note given for insurance void simply because it does not say it was given for insurance.

Though the defense is not further pressed, yet we think it incumbent upon us to say that the word “unless,” as used in the statute, means “if it be not that,” or “if it be not a fact that,” or `~ without the case that'' (Century Dictionary unless;" March's Thesaurus Dictionary 195, 677; Webster’s New International Dictionary “unless”), rather than “except.” We think the statute is not intended to prescribe a general rule of uncollectibility of insurance notes, with exception in the case of an affirmative showing by plaintiff of full compliance with the insurance laws. The presumption of law is of legality of conduct, rather than illegality; and this applies to the business of corporations, foreign as well as domestic. 22 Corpus Juris 107, 108; 14a Corpus Juris 1358, 1385; Mt. Arbor Nurseries v. Gurney S. & N. Co., 46 S. D. 234 (191 N. W. 835); McIntosh Livestock Co. v. Buffington, 116 Ore. 399 (241 Pac. 393); 12 Ruling Case Law 101; Northrup v. A. G. Wills Lbr. Co., 65 Kan. 769 (70 Pac. 879); Meaker Galvanizing Co. v. McInnes & Co., 272 Pa. St. 561 (116 Atl. 400); McClarran v. Longdin-Brugger Co., 24 Ohio App. 434 (157 N. E. 828); Langworthy v. Garding, 74 Minn. 325 (77 N. W. 207); Missouri Pac. R. Co. v. Prude, 265 U. S. 99, 101 (68 L. Ed. 919, 928). See McKinley-Lanning L. & Tr. Co. v. Gorden, 113 Iowa 481, 484. We are of the opinion that it was not the intention of the legislature in the case of notes given for insurance to reverse this presumption.&emdash;Reversed.

Evans, Faville, De Graee, Kindig, Wagner, and Grimm, JJ., concur. Albert, C. J., and Stevens, J., dissent.

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