Dvorak v. Kucera
| Decision Date | 31 January 1936 |
| Docket Number | 29447 |
| Citation | 264 N.W. 737,130 Neb. 341 |
| Parties | MARY DVORAK, APPELLEE, v. FRANK O. KUCERA: VICTOR A. DVORAK ET AL., INTERVENERS, APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Saline county: ROBERT M PROUDFIT, JUDGE. Affirmed in part and reversed in part.
AFFIRMED IN PART AND REVERSED IN PART.
Syllabus by the Court.
1. An oral assignment or pledge of a life insurance policy as security for a debt of the assured is valid between the parties, notwithstanding a provision in the policy that no assignment shall be valid unless in writing and filed with the insurer.
2. The delivery of a life insurance policy to secure a debt of the assured, whether assigned or not, constitutes a pledge entitling the pledgee to an equitable lien upon the proceeds.
3. An extrajudicial admission is ordinarily received only when it is against the interest of the party making it, but is incompetent as evidence in his favor.
4. A statute making a witness having a direct legal interest in the controversy incompetent to testify against the representative of a deceased person as to any con versation or transaction between such witness and deceased person does not render incompetent as a witness a third party who relates a conversation between the deceased and another, in which the witness took no part.
5. Evidence examined and held to establish the delivery of a policy of life insurance as security for a debt, entitling the plaintiff to an equitable lien upon the proceeds.
Appeal from District Court, Saline County; Proudfit, Judge.
Action by Mary Dvorak against Frank O. Kucera, wherein Victor A. Dvorak and others and Frank O. Kucera, as administrator of the estate of Edward A. Dvorak, deceased, intervened. From a judgment dismissing the action against Kucera as an individual and for plaintiff, interveners appeal.
Affirmed in part, and reversed in part, and action dismissed.
Bartos, Bartos & Placek, for appellants.
G. E. Hager, contra.
Heard before GOSS, C. J., ROSE and CARTER, JJ., and REDICK and KROGER, District Judges.
This action was brought by Mary Dvorak, plaintiff and widow of Edward A. Dvorak, deceased, against Frank O. Kucera as an individual, praying for a judgment for the amount of the proceeds of a $ 10,000 life insurance policy issued upon the life of the said Edward A. Dvorak, deceased, and that said judgment be declared an equitable lien upon said proceeds. Certain creditors and heirs at law of said deceased obtained the permission of the court and intervened as parties defendant, as did also Frank O. Kucera as administrator of the estate of Edward A. Dvorak. The court, upon final hearing, dismissed the action against Kucera as an individual, and found for the plaintiff in the sum of $ 7,296.52 and interest, and the further sum of $ 800 and interest claimed to be due plaintiff's son Leonard Broz under a contract for his benefit with the plaintiff. The remaining interveners, the heirs of said deceased, and his creditors appeal.
The petition alleges that the plaintiff loaned her husband during his lifetime large sums of money, and about the year 1928 her husband orally assigned to her as collateral security the policy for $ 10,000 which was originally a term policy for ten years and later converted into an ordinary life insurance policy, and that plaintiff had kept one or other of those policies in her possession ever since the same had been delivered to her, and claims an equitable lien on the proceeds of the policy which have been collected and are now in the hands of Kucera as administrator. The petition further alleges that plaintiff holds said policy as collateral security for $ 800 claimed as indebtedness from deceased to Leonard Broz. The allegations of the petition were put in issue by the answer.
The errors assigned are: (1) Findings of the court and judgment based thereon are not sustained by sufficient evidence. (2) Findings of the court and judgment are contrary to law. (3) The court erred in finding that the plaintiff held the insurance policy as collateral security for the $ 800 indebtedness to Leonard Broz. (4) That the court erred in refusing to admit the evidence of Frank Kovar. (5) That the court erred in rejecting the evidence of Charles Javorsky. (6) The court erred in admitting the testimony of Leonard Broz. Of these in their order:
1, 2. The testimony of plaintiff was properly excluded as to the transaction with her husband by which she claims to have received the policy as collateral security for his debt to her, but plaintiff testified she had loaned her husband September 1, 1926, the sum of $ 5,000, and a note for that amount was received in evidence, also a mortgage upon the Dvorak farm securing said note; also on June 9, 1932, the further sum of $ 670 and a note for that amount signed by her husband was received in evidence. This indebtedness is well established. Plaintiff testified that she had the policy in her possession since about 1928 (the original term policy was converted into the life policy in question in 1931), that she kept the insurance policy in question, together with policies of her own and other valuable papers tied up in a separate bundle, in a safe located in a closet in the farm house where she lived with her husband until March 5, 1932, when the house was partially destroyed by fire, after which, except for a few days in the garage, she kept the policy in question and these other papers in a tin box under the brooder house until the damaged house was roofed over, when she kept them in the basement; that she retained the possession of the policy in question until after her husband's death by suicide on November 1, 1933, when Kucera, administrator, asked her for the policy for the purpose of making the proofs of loss, and that at first she refused, but afterwards delivered the policy to the administrator for the sole purpose of making the proofs and on the understanding that her debt was to be paid from the proceeds collected; that she kept the policy in a tin box and took it to Kucera's office when she delivered the policy to him; that Lambert took her to the home place in his car to get the tin box and she got it, and some clothes, and took it back to Kucera's. I told him I had all my important papers in the box. The mortgage securing the $ 5,000 note was not recorded, and later the plaintiff and her husband executed a mortgage to one Hoffman for the sum of $ 10,000, which was recorded and became a first lien upon the farm, and plaintiff testified on rebuttal that the policy in question came into her hands immediately after the Hoffman note and mortgage were executed, the date of which does not appear. Leonard Broz, son of plaintiff by a former marriage, testified that his mother kept her papers in the safe until after the fire, and then in a tin box which she kept under the brooder house, and after the basement was roofed over she kept it in the basement; that he was present at a conversation between his father and mother concerning a policy of insurance, that they were looking over the papers that were taken out of the safe and that "he gave the policy to mother and he said that will take the place of what amount of money that he owes her," and told her to keep it anywhere she wants to so it would not get lost. Irene Broz, daughter of plaintiff, testified that soon after the fire she was present on an occasion when her father and mother were sorting papers out of a box where they had put the papers that came out of the safe, and that Dad gave her the policy and "told her to keep it for the money that he owes her;" that her mother kept it in a tin box which she first placed under the brooder house and then in the basement after it had been roofed over. Frank O. Kucera, called for plaintiff, testified that the day Dvorak committed suicide he took Mary to his house and the next day he asked Mary where she had those papers (exhibit 1) and "she had a safety deposit box, one of these little boxes they use in the bank," and the box and papers were there at my house; also that August, 1933, when Edward A. Dvorak was making application for a loan from the Federal Land Bank and listing his indebtedness he said, "Well, I owe her (his wife) quite a bit of money, but she is holding security, my life insurance policy," he says, "I don't think we have to put that in there." The application was not sent in as the other debts were more than the loan would stand. The above were all the witnesses called for plaintiff to establish the delivery of the policy, but plaintiff introduced in evidence a document in the handwriting of and signed by Edward A. Dvorak a short time before he killed himself by shooting in the head while plaintiff was kneeling beside him, and plaintiff testified that her husband gave her the paper and told her to keep it, and the paper was afterwards found by the side of the husband's body. It was identified as exhibit 1, and was in the following terms: ...
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