Farmers Union Fid. Ins. Co. v. Farmers Union Co-Operative Ins. Co., No. 32139.

• Court: Supreme Court of Nebraska
• Writing for the Court: WENKE
• Citation: 147 Neb. 1093,26 N.W.2d 122
• Parties: FARMERS UNION FIDELITY INS. CO. v. FARMERS UNION CO-OPERATIVE INS. CO.
• Docket Number: No. 32139.
• Decision Date: 14 February 1947

147 Neb. 1093
26 N.W.2d 122

FARMERS UNION FIDELITY INS. CO.
v.
FARMERS UNION CO-OPERATIVE INS. CO.

No. 32139.

Supreme Court of Nebraska.

Feb. 14, 1947.

Appeal from District Court, Douglas County; Day, Judge.

Action by the Farmers Union Fidelity Insurance Company, a corporation, against the Farmers Union Co-Operative Insurance Company, a corporation, to recover a portion of the loss sustained by the plaintiff on a policy issued to an insured who was claimed to have been reinsured with defendant. From a judgment for defendant, the plaintiff appeals.

Judgment affirmed.

Syllabus by the Court.

1. Where the testimony is in conflict, a jury waived, and trial had to the court, the court's findings have the effect of a jury verdict and will not be set aside on appeal unless clearly wrong.

2. To establish an express contract there must be shown what amounts to a definite proposal and an unconditional and absolute acceptance thereof.

3. Where one, to whom an offer is made, makes a counter-proposition of different terms and new conditions, such counter-proposition amounts to a rejection of the offer.

4. It has long been the rule in this jurisdiction that a party who gives one reason for his conduct and decision as to a matter involved in controversy cannot, after litigation has begun, defend upon another and different ground.

5. Unless it appears that the depositions were not taken in good faith or were actually unnecessary, costs of taking them are properly taxable although they were not used at the trial.

6. The questions of good faith and reasonable necessity are for the trial court to determine.

[26 N.W.2d 123]

H. G. Wellensiek, of Grand Island, and W. P. Loomis, of Omaha, for appellant.

Harold A. Prince, of Grand Island, and Arthur C. Pancoast, of Omaha, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, J.

WENKE, Justice.

The Farmers Union Fidelity Insurance Company, a corporation, brought this action in the district court for Douglas County against the Farmers Union Co-Operative Insurance Company, a corporation. The purpose of the action is to recover that part of a loss sustained on its policy issued to Wm. Boehnke which it claimed had been reinsured with the defendant. From a judgment for the defendant, its motions for new trial and to retax costs having been denied, the plaintiff appeals.

For convenience the appellant will be referred to as plaintiff and the appellee as defendant.

The first question that presents itself is whether or not the judgment of the trial court is sustained by the evidence. In order to recover the plaintiff must establish that there was a contract of reinsurance under which it seeks to hold the defendant liable.

Since this is a law action tried to the court we apply thereto the following rule: ‘* * * where the testimony is in conflict and a jury is waived and trial is had to the court, the court's findings have the effect of a jury verdict, and will not be set aside on appeal unless clearly wrong.’ Chicago & N. W. Ry. Co. v. Mallory, Neb., 23 N.W.2d 735, 742.

The record discloses that on September 20, 1939, and effective as of that date, the plaintiff and defendant entered into a mutual reinsurance contract. By the terms of this contract it is provided: ‘3. Reinsurance shall be applied for by either company to the other upon forms to be agreed upon, and upon approval of such applications, the reinsurance shall be effective and the reinsuring company shall thereafter send the reinsured company a certificate or policy of reinsurance.’ This contract also provided: ‘1. * * * upon acceptance of which the reinsurance shall be identical with the conditions of the reinsured company's policies, and shall be subject to the same risks, conditions, valuations, endorsements, assignments, cancellations, and transfers as are or may be assumed by the reinsured company.’

Thereafter, on October 4, 1939, Wm. Boehnke made application to the plaintiff for insurance, both fire and windstorm, as follows: Barn and granary $1,125, hog house $300, and chicken house $100. Pursuant thereto and dated October 9, 1939, but effective as of October 4, 1939, the plaintiff issued its policy No. 00442 to Wm. Boehnke to cover the foregoing risk.

This policy had a standard mortgage clause thereto attached in favor of Carl A. Busskohl which provided, among other things, as follows: ‘This Company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee * * * for ten days after notice to the mortgagee * * * of such cancellation * * *.’

On October 25, 1939, pursuant to the contract for reinsurance, the plaintiff sent the defendant nine applications for reinsurance including that of Wm. Boehnke. The application for reinsurance on Wm. Boehnke is dated October 25, 1939, and requests reinsurance, effective as of November 4, 1939, to the extent of 50 percent of the risk, to wit: Barn and granary $562.50, hog house $150, and chicken house $50, at a premium assessment of $1.61 for 11 months.

On October 26, 1939, defendant wrote plaintiff regarding the applications sent on October 25, 1939, and particularly with reference to the Wm. Boehnke policy as follows: ‘We have received the reinsurance applications enclosed in your letter dated October 25 and find them satisfactory with the exception of the following: * * *

[26 N.W.2d 124]

Policy #442-Wm. Boehnke: We have also changed the...