Arendt v. North American Life Ins. Company

• Decision Date: 16 February 1922
• Docket Number: 21773
• Citation: 187 N.W. 65,107 Neb. 716
• Parties: DAN C. ARENDT, APPELLEE, v. NORTH AMERICAN LIFE INSURANCE COMPANY, APPELLANT
• Court: Nebraska Supreme Court

187 N.W. 65

107 Neb. 716

DAN C. ARENDT, APPELLEE, v. NORTH AMERICAN LIFE INSURANCE COMPANY, APPELLANT

No. 21773

Supreme Court of Nebraska

February 16, 1922

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

W. W Young and Good & Good, for appellant.

C. C Flansburg, contra.

Heard before MORRISSEY, C.J., ROSE and ALDRICH, JJ., BUTTON and COLBY, District Judges.

OPINION

COLBY, District Judge.

Dan C. Arendt, appellee, brought suit in the district court for Lancaster county against the North American Life Insurance Company, appellant, on a policy of life insurance.

The petition recites, in substance, that the defendant is a Nebraska life insurance company, formerly doing business as the German-American Life Insurance Company, and that on April 6, 1917, it issued its policy to one W. Cornell Arendt in the sum of $ 2,500, naming Dan C. Arendt, a brother of said insured, and appellee herein, as beneficiary; that in June, 1917, defendant amended its articles of incorporation by changing its name to North American Life Insurance Company; that, while said policy was in force, the insured, who was subject to military service under the selective draft act of the congress of the United States, was called on December 11, 1917, by the United States into military service, assigned to the branch of coast artillery, ordered into training at Fort Logan, Colorado, and remained there in training until September 16, 1918, when he was transferred to Camp Mills, Garden City, Long Island, U.S. A., preparatory to being sent overseas; that while said policy was in full force, and while the said insured was still in training at Camp Mills, he contracted pneumonia, from which he sickened and died on or about September 29, 1918; that up to the time of the death of said insured all premiums due on said policy had been paid and all the conditions of said policy on the part of the insured had been duly performed.

The petition further alleges that on March 30, 1918, one C. E. Lowry, general agent of and in the employ of the defendant company, was informed by the father of plaintiff that the insured was in a training camp, as hereinbefore set forth, and he declined to pay the renewal premium, as requested by said agent, and that said agent then stated that the premium could be reduced by changing the form of the policy to term insurance, and that said policy, for its full face value, would continue in force on the payment of such reduced premium; and in reliance upon said statement the father of plaintiff, in order to continue the policy in force, paid the premium to said agent and delivered the policy of insurance to him, who, in turn, forwarded it and said premium to defendant, and that on April 3, 1918, defendant indorsed on said policy, "Policy changed to term insurance," which indorsement was signed by G. L. E. Klingbeil, president, and D. D. Hall, secretary, of said company, and was written under a general heading which provided, "No change of plan of policy will be recognized until indorsed on this policy by the company at the home office, and the signature of the president and secretary affixed to such indorsement;" that after such indorsement defendant returned said policy, together with a receipt for said premium paid.

The plaintiff's petition further states the facts required in an ordinary cause of action on the policy, and sets out the policy with certain other facts relied upon to show a waiver of the benefit of the war clause and military service contained in said policy. It is also alleged that $ 850 was paid to plaintiff on account of the policy, and prays judgment for $ 1,650, alleged to be the balance due on such policy, with interest, attorney's fees and costs.

The defendant company for answer to plaintiff's petition denies each and every allegation therein contained, excepting such admissions as are admitted in the answer. The defendant admitted its incorporation, business, the issuance of a certain policy of insurance on the life of W. Cornell Arendt, payable to plaintiff, alleged that one George Arendt, father of insured, without authority and as a volunteer, converted said policy from the "twenty pay life plan" to the "term insurance plan," and paid the second annual premium, amounting to $ 32.73, but alleged it was unable to state whether the policy attached was a correct copy or not.

Paragraph 4 of the answer alleged that the policy did not insure the life of W. Cornell Arendt against military or naval service in time of war, which risk was especially excluded by a provision in said policy printed in bold type at the top of the third page as follows: "This policy insures the life of the insured against death occurring in any part of the world and in any occupation, or from any cause, except military or naval service in time of war, aerial ascensions, aviation, professional automobile racing and suicide or self-destruction as provided by subdivisions 3, 7 and 8, of section 1, on page 2 of this policy."

The subdivision 3, set out in said answer, is as follows: "This policy shall be incontestable after one year from date of issue except for nonpayment of premiums, or for military or naval service in time of war, during the premium-paying period, which military or naval service requires the written consent of the president and the payment of an extra premium, not to exceed 3 per cent. of the face of the policy; otherwise, without such consent, the amount payable thereunder shall be such a sum as the premiums paid would have purchased on the basis of the increased premiums, which sum shall not be less than the full reserve for the policy. This policy and the application therefor, a copy of which is hereto attached, constitute the entire contract between the parties hereto. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statements shall avoid this policy, or be used in the defense of a claim hereunder, unless contained in the written application and unless a copy of such application be indorsed upon or attached to the policy when issued."

The answer further alleges that on August 10, 1916, about eight months prior to the issuance of the policy, the board of directors of defendant company formally fixed the extra premium, required to be paid by the insured in addition to the regular premium, for military and naval service in time of war at 3 per cent. of the face of the policy, which sum was required to be paid in advance at the time of the application for engaging in such service, and that upon the condition that the written consent of the president of the defendant company first be obtained; that the insured never made application to the defendant company or any of its officers for permission to engage in the military or naval service, never obtained the consent of the president or paid any extra premium required, but when the second premium became due it was converted into term insurance.

The answer further alleges that in December, 1917, W. Cornell Arendt enlisted in time of war in the military service of the United States, and on December 11th of that year was ordered into training at Fort Logan, Colorado, and about 15 days previous to his death was ordered to New York for the purpose of going overseas for service in a combat division, and that while there, in the military service in time of war, about September 29, 1918, he died, and that after proofs were made defendant paid plaintiff the sum of $ 850 on April 28, 1918.

It was also alleged in the answer that said C. E. Lowry was only a special agent of defendant company at the time of the payment to him of the second annual premium and of the change to term insurance, and that his chief duties were soliciting applications and assisting agents in the field to write business and procuring new agents; that he was not the renewal agent of the defendant company, and that the payment to him of said premium was not binding upon the defendant company; that plaintiff, Dan C. Arendt, was a special agent of defendant company and solicited the application of W. Cornell Arendt, the insured, and that as such agent he was familiar with all the conditions and provisions of said policy, and a counterclaim was made against plaintiff for $ 74.32 as a balance alleged to be due defendant company on account.

The plaintiff's reply to the answer and cross-petition denied every allegation of new matter therein contained.

The case was tried to a jury, which returned a general verdict in favor of defendant on plaintiff's claim and against defendant on its counterclaim. Judgment was reserved by the court, and on plaintiff's motion the court gave judgment for the plaintiff, non obstante veredicto, for the sum of $ 1,789, and costs of the action, including $ 350 as fees for plaintiff's attorneys. Defendant company filed a motion for a new trial, which was overruled, and this court is asked to set aside the judgment of the lower court for errors assigned.

The first proposition of law to be considered by this court is under what conditions can a judgment "non obstante veredicto" be rendered.

Section 8008, Rev. St. 1913, provides: "Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party." This provision of the statute requires a careful examination of the pleadings, which must show from statements therein that one party is entitled by law to judgment in his favor, even though a verdict has been found by a jury against such party. The petition, answer and reply will be considered by the court, and the judgment, if...