62 Neb. 585 | Neb. | 1901
This is an action brought in the district court of Lancaster county by Pauline Anders, administratrix. of the estate of Adolph Anders, deceased, against the Life Insurance Clearing Association of St. Paul, Minnesota, to recover the sum of $1,000 on a policy of insurance on the life of Adolph Anders, which it was claimed was executed by the Life Insurance Clearing Association about a month
The questions presented for-consideration in this case are: First, are the matters set out in that portion of defendant’s answer above quoted condition’s precedent? and, second, were they waived by the company so as to make it liable on the policy? and, third, if they were waived, should plaintiff in error have been allowed to prove such waiver, not having by any pleading presented the question of
It will be noticed that the application originally made by Anders, deceased, a certified copy of which was used by the defendant company as a basis for writing the risk, contains a clause in the following language: “I do hereby agree that the foregoing answers and statements, and also those made to the company’s medical examiner, are true and full, and are offered as a consideration of the policy contract, which shall not take effect until the first premium shall have been paid, during my life and good health.” Prom this clause in the application signed by Anders, and the conditions of the policy pleaded by defendant in error, we are of the opinion that Anders, deceased, was bound to take notice that the policy did not take effect until he had paid the first premium and had furnished to the company some kind of certificate that he was in good health at the time he made such payment and received the policy. It is true, the evidence tends to show that he did in fact pay the first premium at the time he executed the application to the Omaha life insurance company. No part of this money ever reached the defendant, the Life Insurance Clearing Company. Yet there is no evidence tending to show that the health certificates were executed in accordance with the conditions of the policy, and it seems very clear that defendant in error had no knowledge that the policy had ever been delivered to deceased until it received notice of his death. The conditions precedent pleaded by defendant in error are conditions that might have been waived, and whether evidence of waiver under the pleadings was admissible will require consideration.
Section 128 of the Code of Civil Procedure is as follows: “In pleading the performance of conditions precedent in
It is the policy of our Code of Civil Procedure that matters actually in controversy between the litigants shall be narrowed down within the least possible limits, so that the time of the court may not be taken up in the hearing
It follows, therefore, that the action of the district court in instructing the jury to find in favor of the defendant in error was right, and it is recommended that the judgment of the lower court be affirmed.
For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.