Hagelin v. Commonwealth Life Ins. Company

• Decision Date: 16 May 1921
• Docket Number: 21524
• Parties: CARRIE HAGELIN, APPELLEE, v. COMMONWEALTH LIFE INSURANCE COMPANY, APPELLANT
• Court: Nebraska Supreme Court

183 N.W. 103

106 Neb. 187

CARRIE HAGELIN, APPELLEE, v. COMMONWEALTH LIFE INSURANCE COMPANY, APPELLANT

No. 21524

Supreme Court of Nebraska

May 16, 1921

APPEAL from the district court for Lancaster county: ELLIOTT J CLEMENTS, JUDGE. Affirmed.

AFFIRMED.

Fawcett & Mockett, for appellant.

Stewart Perry & Stewart, contra.

OPINION

LETTON, J.

Paul A. Hagelin, the assured, was a son of plaintiff, the beneficiary named in a life insurance policy issued to him by defendant. He died November 2, 1918, from a wound received in battle in the World war. The defendant admits the issuance of the policy, but denies that the assured at all times fully complied with its conditions. It pleads that one of the provisions of the policy is: "This policy is unrestricted as to travel, residence or occupation of the insured. In case of death of the insured by self-destruction, sane or insane, within one year from date of issue, a sum equal to the premiums actually paid hereon, and no more, shall be paid, but if at any time he engage in military or naval service in time of war (the militia not in active service excepted), he shall secure the company's written consent and pay the extra premium therefor." And it alleges that the assured, without receiving the company's written consent, went beyond seas, and, while engaged in military service, was killed, and that this forfeited the policy except as to the return of premiums paid. The answer also pleads some matters of evidence which will be mentioned hereafter. Liability is denied on account of the failure to procure the written consent of the company and failing to pay the extra premium. The reply is a general denial, with affirmative defenses not necessary to set forth, as the case is not controlled by them.

When the assured was drafted he wrote the following letter to defendant:

"April 25th, 1918.

"Commonwealth Life Insurance Co., Omaha, Nebr.

"Gentlemen: I am now drafted into the service of the U.S. starting April 26, 1918. Will you kindly advise me at your early convenience whether my insurance will hold good in view of the present emergency. Will it be possible to collect the full amount of the policy in case of a casualty during the term of military service either in this country or abroad. Or does the policy merely lapse with an option of taking it up again after the war is over. Please advise me fully as I am anxious to know before I make any further payments on the premiums soon coming due. I am, very truly yours,

"Paul A. Hagelin."

Defendant answered:

"April 27th, 1918.

"Mr. Paul Hagelin, Box 122, Wahoo, Nebraska.

"Dear Sir: In reply to your letter of the 25th, wish to state that all of our policies carry a war clause and the policy holder has a choice of two options. If you wish the face of your policy to be paid to the beneficiary, should you die or be killed while in service, it will be necessary for you to request a permit from the company and pay an extra premium, which at the present time is $ 37.50 per $ 1,000.

"However, as you undoubtedly know, the government is paying insurance on all of the soldiers and sailors, and we have advised all of our policy-holders to take as much government insurance as possible and pay the regular premium on their policies. Should they then die or be killed while in service, the surrender value of the policy will be returned. In keeping the policy in force this way, should you return crippled, sick, or in such condition that you could not again pass the physical examination, you will have an old line policy, as we do not require re-examination.

"If there are any other questions that you would like to ask in regard to your policy, we will be pleased to again hear from you. Yours very truly,

"J. E. Euhling, Secretary."

Defendant received no answer to this letter. The premium due in June was paid by a brother of the assured. In October defendant received the following letter from Eleanor Hagelin, a sister of the assured:

"October 10, 1918

"Commonwealth Life Ins. Co., Omaha, Nebraska.

"Dear Sir: Please notify me hereafter, when my brother's policy, Paul A. Hagelin, Touhy, Nebr., policy No. 445, is due and how much and how good the policy is after he has gone to war and how much more, if any, you have to pay to collect the face value. I am going to try to keep up his policy until he returns. Please write me all the particulars. Respectfully yours,

"Eleanor Hagelin, 1644 O Street, Lincoln, Nebr." Defendant replied as follows:

"Oct 14, 1918.

"Eleanor Hagelin, 1644 O Street, Lincoln, Nebraska.

"Dear Madam: I have your letter of the 10th inst., and note what you have to say in regard to...