106 Neb. 853 | Neb. | 1921
This action was brought by the plaintiffs, as guardians of Margaret E. Axtell, minor daughter and beneficiary of J. Edward Axtell, deceased, on a beneficiary certificate for $2,000 issued on June 23, 1916, by defendant to said J. Edward Axtell, who died April 1, 1917. Prom a verdict and judgment in favor of plaintiffs, defendant appeals.
The petition is in the usual form employed in such a case,' and all the material allegations. thereof are admitted in defendant’s amended answer. Defendant pleads fraud on the part of the assured in procuring said insurance as a defense to the action. The substance of the allegations in the answer on which this defense is based is that Axtell made a written application for membership, which is a part of the insurance contract, in which appears the following questions and answers thereto by applicant, to wit: “How long since you consulted or were attended by a physician? One year.” “For what disease? La grippe.” “Have you had any severe illness or injury not mentioned above? No.” That said answers were false and fraudulent; that assured well knew that he had been treated shortly before for bronchitis and pneumonia; that prior to. the date of said application applicant was suffering from heart trouble and was in a weakened con
Under the rule for distinguishing between representations and warranties in an application for insurance laid down in Ætna Ins. Co. v. Simmons, 49 Neb. 811, and followed in Kettenbach v. Omaha Life Ass’n, 49 Neb. 842, Ætna Life Ins. Co. v. Rehlaender, 68 Neb. 284, Goff v. Supreme Lodge, Royal Achates, 90 Neb. 579, Yonda v. Royal neighbors of America, 96 Neb. 730, and other cases, we have no hesitancy in holding that the statements of assured in the application complained of are representations, and not warranties. It is apparent that defendant entertained the same opinion when it filed its amended answer herein, for the defense therein pleaded is not. that of a breach of warranty, but is that of fraud and deceit on the part of the applicant in making said alleged false answers and misrepresentations,, which defendant alleges were made intentionally for the purpose of deceiving defendant.
The chief distinction between a warranty and a representation in insurance law is that the former is the assertion by the assured of some fact, on the literal truth of which the validity of the policy depends, without regard to the materiality of such fact; while a representation is also the assertion by the assured of a fact, but the validity of the policy does not depend upon the literal truth of said assertion. Ætna Ins. Co. v. Simmons, supra.
In the case at bar the defendant treated the answers
In their brief counsel for defendant have abstracted the evidence introduced by them to prove the answers to the questions complained of were false and that assured-knew that they were false. The only evidence referred to or offered to prove that it had not been one year before the date of the application since Axtell had consulted or was attended by a physician is the testimony of Dr. Barta. This witness testified that he made an examination of assured some time in the year 1916; that he did not know and would not say whether it was before June or not. On being asked whether he would say it was in the first or last half of the year 1916, he answered that, if he was to guess, he would put it in the first half, but that he could not say definitely when it was. Fraud is not presumed and cannot be established by the guess of a witness. This evidence falls far short of proving conclusively the falsity of said answer.-
To prove the falsity of assured’s answer to the question, “Have-you had any severe illness or injury not mentioned above?” counsel refer to the testimony of the witness Beranek to the effect that, in'the fall of 1915, 'Axtell was sick and told witness that he had dropsy; also the testimony of Drs. Brewster, Green, and Week. Dr. Brewster
The question of Avhether assured had had any severe illness is one of fact for the jury. “A jury is not warranted in arbitrarily or capriciously rejecting the testimony of a witness, but neither are they required to accept and give effect to testimony which they find to be unreliable,. although it may be uncontradicted.” State v.
We have read all the evidence received, that offered and excluded, the objections thereto, and find no prejudicial error in the rulings of the court thereon.
Defendant requested the court to submit four special interrogatories to the jury, which request Avas refused, and this refusal is alleged to be error. The submission of special interrogatories, Avlien requested, is within the discretion of the court (Huxoll v. Union P. R. Co., 99 Neb. 170), and the refusal to submit the interrogatories requested by defendant herein Avas not an abuse of such discretion.
, Defendant’s contention that the court erred in refusing to give its requested instruction No. 5, and in giving instructions Nos. 3 and 4 by the court, may be properly considered together. The substance of said requested instruction is embodied in instruction No. 3, given by the court. It contains a clause which appears to be, in substance, the same as the clauses in said instructions Nos. 3 and 4, given by the court, complained of; and the defendant Avill not be permitted to take advantage of an alleged error in giving instructions because of a proposition therein Avhich is substantially like the one in the instruction requested by it.
Counsel’s assignment and presentation in this brief of the alleged errors of the court in refusing to give instructions Nos. 6, 7, 8, and 9, requested by defendant, are so vague and indefinite that they do not merit consideration. HoAvever, an examination of said instructions shows that some of them are based on the theory that the answers to the questions in the application complained of are warranties; that some assume facts, and thus invade the province of the jury; and that-all of the correct legal propositions stated therein applicable in this case are em
Counsel do not contend that instruction No. 5, given by the court, is not a correct statement of the law, but insist that it is not supported by the evidence. This instruction is evidently based upon plaintiff’s theory that defendant failed to prove that the answers written in the application by Dr. .Newbecker were made by deceased, or that he signed, part II of said application. The reply contained a general denial. The burden of proving every material allegation in the amended answer rested upon defendant. Among these are the allegations that assured made a written application in. which were his answers to questions alleged to be false; and counsel for plaintiff contend that Dr. Newbecker’s testimony proves that the answers in the application are the answers of the doctor, and not those of assured. However, the giving of an instruction which is not applicable to the issues or evidence will not work a reversal of a judgment unless the rights of the complaining party were prejudiced thereby. Burlington & M. R. R. Co. v. Gorsuch, 47 Neb. 767; McClellan v. Hein, 56 Neb. 600. We perceive no prejudice resulting to defendant from the giving of said instruction which requires a reversal of the judgment herein.
We do not think that counsel’s criticism of instructions Nos. 6, 7, 8, and 9, given by the court, is justified, or that the giving of same constitutes prejudicial error. It devolved upon defendant to prove that the answers complained of were made by assured, and that he had theretofore had a “severe illness’’ within the correct meaning of that term; and.it was not error for the court to define “Severe illness,” nor to put the burden of proof upon defendant, as was done in instructions Nos. 6 and 7.
Instruction No. 8 appears to correctly state the law; and counsel’s criticism of instruction No. 9, which they say “in general terms states the law,” is hypercritical, •
We find that the amount allowed the plaintiffs by the. trial court as attorneys’ fees is excessive and should be
Affirmed as modified.