Bankers Union of World v. Favalora

Decision Date23 March 1905
Docket Number13,745
Citation102 N.W. 1013,73 Neb. 427
PartiesBANKERS UNION OF THE WORLD v. JOHN FAVALORA
CourtNebraska Supreme Court

ERROR to the district court for Douglas county: JACOB FAWCETT JUDGE. Affirmed.

AFFIRMED.

Matthew Gering and Frank L. Weaver, for plaintiff in error.

Crane & Boucher, contra.

OLDHAM C. AMES and LETTON, CC., concur.

OPINION

OLDHAM, C.

In this suit John Favalora filed his petition in the county court of Douglas county against the Bankers Union of the World to recover $ 843 on a certificate issued by said company for $ 1,000. In the petition it was alleged that on December 13 1900, the defendant issued its policy of insurance on the lives of John Favalora and Catherine Favalora in the sum of $ 1,000, payable to the survivor; that a true copy of said policy was attached to the petition as Exhibit "A," and made a part thereof; that Catherine Favalora died May 10 1902; that the policy of Catherine Favalora was in full force at the time of her death, and that plaintiff was the beneficiary named therein and the surviving husband of the deceased; that proof of death had been regularly made and sent to the defendant, and that Catherine Favalora was a member in good standing of the order at the time of her death, and had paid all dues and assessments provided for in her contract of membership, and that there was due on the policy $ 843. The copy of the policy attached to the petition showed on its face that, if the insured should die within the second year after its issue, the sum of $ 157 should be deducted from the amount of the policy. Accordingly, the prayer of the petition was for $ 1,000, less this amount. The answer of defendant admitted its incorporation and that it was doing business as a fraternal benefit society; admitted that the insured was a member in good standing in said society at the time of her death; admitted that she died at the time and place alleged in plaintiff's petition, and that plaintiff was her surviving husband and beneficiary named in the policy; admitted that the copy of the policy attached to the petition was true and correct, and contained the conditions of said policy; and denied each and every other allegation in the petition, and contained an additional paragraph, as follows: "Further answering, this defendant avers that an account was stated between plaintiff and defendant on or about the first day of February, 1903, and there was found to be due the plaintiff from defendant on said policy or certificate mentioned in plaintiff's petition the sum of $ 465.80, which amount of $ 465.80 this defendant promised and agreed to pay plaintiff; and defendant alleges that it is willing to pay plaintiff said amount, with interest thereon, and hereby offers to confess judgment for said amount of $ 465.80, with interest thereon and costs of suit." Under these pleadings the case was tried in the county court, where judgment was entered for plaintiff for $ 465.80, in accordance with the prayer of the answer. Plaintiff thereupon appealed the case to the district court for Douglas county, and filed a petition which was an exact copy of its petition in the county court. Defendant answered with the same allegations as those contained in defendant's answer in the county court, except that the following additional paragraph, numbered 7, was added to its answer: "7. Further answering, defendant alleges that, in conformity with the agreement made between the defendant and the beneficiary of said policy, this defendant accepted a draft for $ 465.80, and that said draft was sent to the Omaha National Bank for collection, and attached to said draft was the policy or benefit certificate, canceled and released, and the defendant is now and has been at all times ready and willing to pay said draft, and that said draft was accepted by the plaintiff in this case in full settlement for her claim against this defendant, and in conformity with such agreement he signed a release on the back of said benefit certificate and transmitted the same to the Omaha National Bank." On plaintiff's motion, this paragraph "7" was stricken from the answer, because it presented an issue of fact not contained in the answer in the county court. When this motion was sustained, defendant tendered no further pleadings, and the plaintiff filed a motion for judgment on the pleadings for the amount prayed for in the petition. This motion was sustained, and judgment was rendered accordingly. To reverse this judgment, defendant...

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