98 Neb. 172 | Neb. | 1915
Tbe plaintiff in bis amended petition alleges that tbe defendant is an insurance company doing a general life insurance business, and that on the 1st day of June, 1910, tbe defendant entered into a contract, partly verbal and partly in writing, with tbe plaintiff’s wife, Mabel Rankin, whereby tbe defendant insured tbe life of Mabel Rankin in tbe sum of $1,000, payable to tbe plaintiff upon tbe death of Mabel Rankin. A copy of tbe alleged written portion of
The principal issue presented by the pleadings was as to the contents and proper construction of the application for insurance. After the action was begun, and before the amendment of pleadings, the plaintiff demanded of the defendant an inspection and copy, or opportunity to obtain a copy, of the application. The defendant offered to allow an inspection of the application at its office in Detroit, Michigan, but refused to present the application for inspection at the office of the plaintiff’s attorney, and after-wards failed to bring the same into court. The court, upon motion of plaintiff, ordered the defendant “to produce said written application for inspection.” The plaintiff offered in evidence his affidavit alleging the contents of the application and the indorsements thereon. The defendant objecting thereto, the plaintiff’s attorney, having been sworn as a witness, testified that when the order to produce the application was made by the judge then presiding, attorneys for both parties being present in open court, the de
The defendant asked the court to instruct the jury to return a verdict for the defendant, which the court refused. This question is discussed at large in the briefs, and many special assignments of error are predicated upon it.
It appears that two applications were made and were pending together, one upon the life of Mr. Rankin, and one upon the life of his wife, Mabel Rankin. Mr. Rankin paid $5 and gave his note for the remainder of one year’s premium on one of these applications. He contends that the payment was made on Mrs. Rankin’s application, but the defendant contends that it was upon the application of Mr. Rankin, and that no premium was paid for the insurance here sued for. The receipt in evidence shows that the $5 was paid by Mr. Rankin; but he testifies that it was paid for Mrs. Rankin, and he is well supported in this. He produced another witness who so testified, and also the company’s agent himself testified upon cross-examination : “Did you receive any cash upon the policy of insurance — upon the application on the life of Joseph A. Rankin? A. No, sir. Q. Did you receive any cash upon the application of Mrs. Rankin? A. Yes, sir. Q. That is
The defendant appears to rely upon certain clauses in the rate book of the company and in other documents not called to the attention of the assured. The agent acted within his apparent authority in disregarding such provisions, and the defendant is bound by such acts of its agent.
There was some conflict in the evidence as to the time of the commencement of Mrs. Rankin’s fatal illness, and defendant contends that the examining physician was deceived as to her condition. But this and similar questions were for the jury and appear to have been fairly submitted.
The defendant’s assignments of error, 8 to 8, inclusive, are upon the refusal of the court to give instructions requested. Some of these requested instructions were substantially given by the court; others relate to the sufficiency of the evidence upon points discussed. We find no reversible error in refusing these requested instructions.
; In the condition of this record, there was no reversible error in instructing the jury that a contract of insurance
The contract was made with defendant’s local agent, and it was immaterial who the general agent of the company might be.
Remarks of plaintiff’s counsel in argument are objected to as misconduct; but these remarks were generally expressions of opinion, and we have not observed that the record shows that counsel made such statements of fact as require a reversal.
We have not found any error in the record requiring a reversal, and the judgment of the district court is
Affirmed.