
    S. H. Summers v. Des Moines Insurance Company, Appellant.
    Policies: FAILURE TO ATTACH COPY'OF PREMIUM NOTE: IS WdWer Of nonpayment. Under Code, section 1741 providing that an insurance company which neglects to attach to nr indorse-one its policies a copy of any application or representation of the insured, which hy the terms of the policy is made a part of the contract of insurance, or which may in any manner affect its validity, shall he precluded from setting up such representations in defense to an action on the policy, an insurance company which fails to attach to or indorse on a policy, a copy of a premium note given therefor, will he precluded from setting up non-payment of the note in defense, though the policy provides that it will he void if the premium is not paid when due.
    
      Appeal from Wayne District Court.- — Hon. H. M. Towner, Judge.
    Thursday, December 19, 1901.
    Action to recover, upon a policy of insurance against loss or damage by fire, for a loss tbat occurred November 12, 1898. The policy set out provides that it shall be void “if the premium be not paid when due.” Defendant answered, admitting that, but for the defense set up in count 2, plaintiff would be entitled to recover the amount of said loss. In count 2 defendant alleges that the premium for said policy, $18, was not paid when the policy was issued, that plaintiff executed to defendant his promissory note therefor, due on or before the twenty-eighth day of July, 1898, and that said note remains wholly unpaid; that on the first day of August, 1898, defendant served notice on the plaintiff, in form and manner as required by law, to pay said note; and that said note was not paid within 30 days thereafter, and still remains wholly unpaid. Defendant ■claims that by reason of these facts the policy was suspended and void at the time of the loss. Plaintiff demurred to said second count upon the ground that the note given for the premium “was.not attached to the policy or indorsed thereon.” The court sustained the demurrer, and, defendant electing to stand upon its answer, judgment was rendered against it, from which it appeals. —
    Affirmed.
    
      Bead & Bead for appellant.
    
      G. Taylor Wright and Miles & Steele for appellee.
   Given, C. J. —

I. Section 174:1 of the Code provides as follows: “All insurance companies dr associations shall, upon the issue or renewal of any policy, attach to such policy, or indorse thereon, a true copy of any application or representation of the assured which, by the terms of such policy, are made a part thereof, or of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such policy. 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 any such application or representations, or any part thereof, or falsity thereof, or any parts thereof, in any action upon such policy, and. the plaintiff in any such action shall not be required, in order to recover against such company or association, either to plead or prove such application or representation, but may do so at his option.” We have the Single question whether, to enable the defendant to avail itself of the defense pleaded, a copy of the premium note must have been attached to or indorsed on the policy. Lewis v. Insurance Co., 71 Iowa, 97; Lewis v. Insurance Co., 80 Iowa, 259, is cited as conclusive on this question. Defendant contends that the question was not argued or considered in that case; that the defendant therein conceded that the premium note must be attached to or indorsed on the policy, to permit the defense, but contended that it was so indorsed, and that the court, accepting this concession as the law, did not construe'said section 1741 on this question. An examination of the record in that case on both appeals shows as follows: That on the same day the defendant issued two policies to the plaintiff, — one against loss by fire, and one against loss by windstorm, etc.; the aggregate premium being $75.81, for which the defendant executed his two promissory notes, — one for $26, due December 1, 1885, and one for $49.80, due January 1, 1885,- — each reciting that it was for premium for insurance. The action was upon the policy against loss by windstorm, etc. Defendant answered, alleging that the policies were given for the combined premium, and that no part thereof had been paid, wherefore, under the terms of the policy, it became void. Plaintiff replied, alleging that the $26 note was given for the premium on the policy sued on; that “the defendant has failed to attach to said policy- or to indorse thereon a copy of said note.” In that case we had the defense of failure to pay the premium note, and a reply that the premium note was not attached to or indorsed upon the policy, — the precise question that is presented in this case. True, the construction of section 1741 as to whether a- premium note must be attached or indorsed on the policy was not argued at any length. Defendant’s contention was' that the two policies were a single transaction, and that the indorsement of the notes on the fire policy, and the reference thereto in the policy sued upon, was a compliance with the law. On the first appeal we said: “The appellee insists that the appellant is not entitled to take advantage of the plaintiff’s default, if he made one, because a copy of the note, as provided by statute, was not attached to the policy sued on. In our opinion, the appellee’s position must be sustained.” On the second appeal we held that the policy in suit was complete in itself, and that, under the former decision, it was required that copy of the note be attached or indorsed, to entitle the defendant to defend on the ground of nonpayment of premium. We think it must be said that that case determines the question under consideration. If it was before this court for the first time, we might reach a different conclusion; but it is a rule of statute, and several general assemblies have convened since that decision, without making any change in the statute, and therefore we feel constrained to adhere to the law as announced in' the Lewis Case, and to say that the demurrer ■was properly sustained. — Affirmeu.  