Anders v. Life Insurance Clearing Company

• Decision Date: 18 September 1901
• Docket Number: 9,831
• Citation: 87 N.W. 331,62 Neb. 585
• Parties: PAULINE ANDERS, ADMINISTRATRIX, v. LIFE INSURANCE CLEARING COMPANY
• Court: Nebraska Supreme Court

87 N.W. 331

62 Neb. 585

PAULINE ANDERS, ADMINISTRATRIX, v. LIFE INSURANCE CLEARING COMPANY

No. 9,831

Supreme Court of Nebraska

September 18, 1901

ERROR from the district court for Lancaster county. Tried below before CORNISH, J. Affirmed.

AFFIRMED.

Edward F. Pettis, for plaintiff in error.

Lambertson & Hall, contra.

KIRKPATRICK C. HASTINGS and DAY, CC., concur. SULLIVAN, J., absent, not voting.

OPINION

KIRKPATRICK, C.

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 before the death of Anders. Trial was had to a jury in the district court, resulting in the district court instructing the jury to bring in a verdict for the defendant in error, the Life Insurance Clearing Company, on the ground that under the pleadings and evidence, plaintiff in error, plaintiff below, could not recover. To reverse this judgment, plaintiff in error has brought the case to this court. The facts in the case, briefly stated, are as follows: A. Von Pulaski, an insurance broker of Hastings, took the application of Adolph Anders for life insurance in the Union Life Insurance Company of Omaha in September, 1893. The application, together with the physician's certificate, was sent to the Omaha company, which appears to have rejected the application as a doubtful risk. The secretary of the Union Life Insurance Company forwarded the application, together with the physician's certificate, to the Life Insurance Clearing Company of St. Paul, which thereupon made out the policy sued upon in this action, sending it with a premium receipt for the first year's premium and two health certificates, one to be signed by Anders, and the other to be signed by the medical examiner of the Omaha company, to the secretary of the Union Life Insurance Company at Omaha. The policy, with the premium receipt and the health certificates, was sent to the agent of the Omaha company at Hastings, who turned over the policy and certificates to Pulaski, who, in turn, mailed the policy to Anders. The health certificates were not signed, nor was the premium receipt delivered to Anders, but was returned to the Omaha company, which returned it to the clearing company at St. Paul. There is a conflict in the testimony as to the payment of the premium by Anders; Pulaski, the broker, testifying that it was paid to him, and that he sent half of it to the clearing company and kept half as his commission; the clearing company, however, claiming that it never received any sum whatever on the premium. The policy, on October 7, 1893, was delivered to Anders, who died on October 29, 1893. The petition of plaintiff in error in the district court alleged execution and delivery of the policy sued upon, attaching a copy of the policy to the petition as an exhibit, and alleged generally the payment of the premium, and full compliance with the terms and conditions of the policy on the part of both plaintiff in error and her intestate. The answer of the clearing company consisted of both a general and special denial, and in addition set out the following as a defense: "Defendant further alleges that said policy of insurance described in plaintiff's petition contained this clause and provision: 'This policy shall not take effect until the first premium thereon shall have been paid to the company, or to some person authorized by the company to receive it, in accordance with the premium receipt accompanying the same, and while the insured is in good health, as evidenced by health certificates properly executed and furnished to the company.' Defendant alleges that if said policy of insurance came into the hands of the said Adolph Anders, it was without the knowledge or consent of the said defendant, and the said Adolph Anders did not pay the first premium to the company or to any person authorized by the company to receive it, in accordance with the premium receipt accompanying the same at the time the said policy came into his possession, or at any other time, and did not furnish to the defendant a health certificate showing that he was in good health at the time the policy came into his hands, or at any other time. Wherefore, the said policy, if it came into the possession of the said Adolph Anders, did not take effect, and was null and void, and the plaintiff is not entitled to recover thereon." To this answer of the insurance company plaintiff filed for reply a general denial.

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 waiver as an issue in the case? We have very carefully examined all the authorities cited by both plaintiff in error and defendant in error, and in addition thereto many other authorities, and have reached the conclusion that the matters specially pleaded in the answer of defendant in error are conditions...