89 Neb. 163 | Neb. | 1911
Lead Opinion
This is a suit to recover back an advance prémium of |237.85 paid by plaintiff to defendant on a subsequently rejected application for life insurance. A demurrer to the petition was overruled. Defendant refused to plead fur
The correctness of the ruling on the demurrer is the question submitted. In the petition it is alleged: Defendant is a corporation organized and doing business under the laws of Nebraska as a life insurance company. August 10, 1905, plaintiff applied to defendant in writing for insurance on his life in the sum of $5,000, and delivered the application to defendant. Defendant has the original application, and plaintiff has no copy. At the same time plaintiff paid defendant $287.85 as an advance premium in the event of the approval of his application and the issuance of a policy, and received from defendant a contract in writing, as follows: “No. 42817. Conditional Receipt. Amount $237.85. Received at Scribner, State of Neb., this 10 day of Aug., 1905, of John Witt, the sum of $237.85, in payment of premium upon $5,000 policy which he has this day applied for to the Old Line Bankers Life Insurance Company of Lincoln, Nebraska. Policy to date at issue, providing said application is approved by said company; otherwise said payment is to be returned to said applicant. It is hereby agreed and understood that a refusal, after being written, on the part of- the applicant to submit to a- medical examination, shall forfeit the payment herein. It is understood and agreed that all the premiums are due in advance and payable in cash, therefore, when notes are taken by the agent as an accommodation to the party insured, any refusal afterwards to accept the policy, or any tender of said policy back to the company or to'an agent, will not in anywise release the party insured from liability on said notes, as the same must be promptly paid, whether the party desires to continue insurance or otherwise. John Witt, Applicant. C. K. Huntington, Agent.”
The petition further alleges: Huntington was the agent of defendant, and was duly qualified to make the contract. The contract was executed in duplicate and a copy delivered to each of the parties. Defendant declined to
When the entire pleading is considered in connection with the contract, the allegation that “thereupon the plaintiff did submit to a medical examination by said physician, who did make a medical examination of plaintiff in writing” amounts to no more than a conclusion of law, which must be disregarded in testing the petition. Kruse v. Johnson, 87 Neb. 694. Such a conclusion is not admitted by the demurrer. Markey v. School District, 58 Neb. 479. Not having alleged performance in the general language authorized by statute, plaintiff was required to- state specifically the facts showing that he complied with the conditions of his contract. On this subject the supreme court of Indiana said: “If a party does not make the general allegation authorized by the statute, but undertakes to make a specific allegation of performance, he must make it with the particularity and strictness required by the rules of the common law.” Home Ins. Co. v. Duke, 43 Ind. 418.
Under any proper rule of pleading, performance on the part of plaintiff is not sufficiently alleged. On this, ground also the demurrer should have been sustained. The judg
Reversed.
Dissenting Opinion
dissenting.
The majority opinion, in my judgment, is so clearly wrong that I cannot permit it to go down without expressing my dissent.
The petition alleges:
“(1.) The defendant is a corporation organized and doing business under the laws of Nebraska as a life insurance company. '
“(2.) On or about August 10, 1905, the plaintiff made application to the defendant in writing, for a life insurance policy on the life of the plaintiff, to be written by the defendant in the sum of $5,000, and delivered said written application to the defendant, and defendant has the same and plaintiff has no copy thereof.
“(3.) At the same time the plaintiff paid to the defendant $237.85 as advance premium on said policy in case said application was approved and policy issued, and received from the defendant a contract in writing in words and figures as follows: ‘No. 42817. Conditional Receipt. Amount $237.85. Received at Scribner, State of Neb., this 10 day of Aug., 1905, of John Witt, the sum of $237.85, in payment of premium upon $5,000 policy which he has this day applied for to the Old Line Bankers Life Insurance Company of Lincoln, Nebraska. Policy to date at issue, providing said application is approved by said Company; otherwise said payment is to be returned to said applicant. It is hereby agreed and understood that a refusal, after being Avritten, on the part of the applicant to submit to a medical examination, shall forfeit the payment herein. It is understood and agreed that all the premiums are due in advance and payable in cash; therefore, when notes are taken by the agent as an. accommodation to the party insured, any refusal afterwards to accept the policy, or any tender of said policy back to the company or to an agent, will not in anywise release the*169 party insured from liability on said notes, as the same must be promptly paid, whether the party desires to continue insurance or otherwise. John Witt, Applicant. C. K. Huntington, Agent.’
“(4.) At said time said C. K. Huntington, who signed said contract, was the agent of the defendant, and duly qualified to make said contract.
“(5.) Said contract was executed in duplicate and duly delivered to each of the parties hereto, the plaintiff taking one copy and the defendant taking one copy.
“(6.) At said time defendant named to the plaintiff O. C. Hopper as a physician to whom the plaintiff should submit himself for a medical examination, and thereupon the plaintiff did submit to a medical examination by said physician, who did make a medical examination of plaintiff in writing, and delivered the same to the defendant.
“(7.) During all of the times above mentioned, the plaintiff has been, and now is, a resident of Dodge county, Nebraska, and each and all of the transactions above mentioned happened and occurred in Dodge county, Nebraska, and said payment was made and contract entered into in Dodge county, Nebraska, and said policy of insurance was to have been delivered to plaintiff in Dodge county, Nebraska, and in lieu thereof said repayment of the premium advanced was payable to the plaintiff in Dodge county, Nebraska.
“(8.) The defendant declined to approve plaintiff’s said application, and has ever since said time refused, and does now refuse, to issue a life insurance policy to plaintiff.”
In his brief, counsel for defendant says that his main contention is “that there is no allegation in the amended petition, either in accord with common law rules or section 128 of the code, to the effect that appellee had duiy performed all the conditions on his part to be done or performed or complied with.” That section was never intended to be the exclusive method of pleading a compliance with all the essential requirements of a contract. Let
The conditional receipt was signed “John Witt, Applicant. C. K. Huntington, Agent.” If the petition stopped there, it might be urged that this paper was not the contract of defendant, but was simply the personal contract of Mr. Huntington; but that contention must give way to the next two paragraphs of the petition which allege that Huntington, Avho signed the contract, “was the agent of the defendant, and duly qualified to make said contract,” and that “said contract was executed in duplicate and
As showing that defendant had complied with the terms of the contract by submitting to ’a medical examination, the sixth paragraph of the petition expressly alleges that “at said time defendant named to the plaintiff O. C. Hopper as a physician to whom the plaintiff should submit himself for a medical examination and thereupon the plaintiff did submit to a medical examination by said physician, who did make a medical examination of plaintiff in writing, and delivered the same to the defendant.” ' Again we assert, it would be doing violence to every rule of code pleading to say that this allegation does not clearly' mean that plaintiff submitted himself for a medical examination to the physician designated by defendant, and that such physician made a medical examination of plaintiff and delivered the same in writing to defendant. Plaintiff’s agreement was that he would submit to a medical examination by a physician and take the policy which should thereafter be delivered by defendant. He did not agree to submit to a series of examinations. His agreement was “to submit to a medical examination.” If defendant did not see fit to issue a policy upon that examination, plaintiff was absolved from any further duty, and was thereafter entitled to a return of his money. Notwithstanding plain
In Pfister v. Sentinel Co., 108 Wis. 572, 580, the court say: “It is elementary lav/, as applied to code pleadings, that a complaint will not be overthrown on demurrer unless it is wholly insufficient. Every reasonable intendment is to be made in its favor” — citing Morse v. Gilman, 16 Wis. *504, and a number of other cases. Morse v. Gilman holds: “Every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be held bad on demurrer, however defective, uncertain or redundant may be the mode of the statement* of facts, if a cause of action may be. gathered from it, and it is not so defective that taking all the facts to be admitted, the court can say that they do not constitute any cause of action whatever.” That case is cited with approval and the rule announced followed by this court in Roberts v. Samson, 50 Neb. 745.
There is another theory upon which the judgment below should be affirmed. If everything that is alleged in reference to the conditional receipt above set out were entirely eliminated from the petition, the petition would still state a cause of action against the defendant for money had and received. It was therefore invulnerable to a general demurrer.