Horton v. Ford Life Ins. Co., S-92-1106
| Court | Supreme Court of Nebraska |
| Citation | 246 Neb. 171,518 N.W.2d 88 |
| Docket Number | No. S-92-1106,S-92-1106 |
| Parties | Virginia HORTON, Appellant, v. FORD LIFE INSURANCE CO., Appellee. |
| Decision Date | 17 June 1994 |
Syllabus by the Court
1. Demurrer: Pleadings: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts well pled and the factual and legal inferences which may be reasonably deduced from such facts, but does not accept conclusions of the pleader.
2. Demurrer: Pleadings. In considering a demurrer, a court cannot assume the existence of a fact not alleged, make factual findings to aid the pleadings, or consider evidence which might be adduced at trial.
3. Pleadings: Words and Phrases. A statement of facts sufficient to constitute a cause of action, as used in Neb.Rev.Stat. § 25-806(6) (Reissue 1989), means a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.
4. Demurrer: Pleadings. In ruling on a demurrer, the petition is to be construed liberally; if, as so construed, the petition states a cause of action, the demurrer is to be overruled.
5. Demurrer: Pleadings: Records. A demurrer reaches an exhibit filed with the petition and made a part thereof, so that a court can consider such exhibit in determining whether the petition states a cause of action.
6. Actions: Pleadings: Records. Exhibits attached to a petition in a case, and being a part of the files therein, which are designated and referred to in an amended petition as exhibits attached thereto, and by reference made a part of the pleading, will be treated as such, in the absence of a motion directed to the same, in determining whether such amended pleading states a cause of action, even though not physically attached to such amended petition.
7. Subrogation: Pleadings. Ordinarily, one seeking subrogation must plead it and set forth the facts from which the right of subrogation arises.
8. Subrogation: Words and Phrases. Subrogation is the substitution of one person who is not a volunteer, a subrogee, for another, a subrogor, as the result of the subrogee's payment of a debt owed to the subrogor so that the subrogee succeeds to the subrogor's right to recover the amount paid by the subrogee.
9. Subrogation: Words and Phrases. Generally, subrogation is the right of one, who has paid an obligation which another should have paid, to be indemnified by the other.
10. Subrogation. Absent an agreement, the doctrine of subrogation applies only when a party pays the debts of a third person, not as a volunteer, but either out of a legal or moral obligation to do so or to protect his or her own rights or interests or to save his or her own property.
11. Decedents' Estates: Affidavits. Anyone paying pursuant to an affidavit prepared under Neb.Rev.Stat. § 30-24,125 (Reissue 1989) is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit.
Robert J. McCormick, of Anderson, Klein, Peterson & Swan, Holdrege, for appellant.
Michael Heavey, of Dwyer, Pohren, Wood, Heavey, Grimm, Goodall & Lazer, Omaha, for appellee.
Virginia Horton claims it was error for a district court to sustain a demurrer to her third amended petition and dismiss her lawsuit against Ford Life Insurance Co. (Ford Life) for the proceeds of a credit life insurance policy on the decedent, Roger E. Horton, M.D.
We reverse the ruling of the district court for Douglas County dismissing Horton's cause of action and remand the cause for further proceedings.
On April 10, 1992, Horton filed a petition in the trial court seeking a $10,000 judgment against Ford Life, together with interest and attorney fees. In her petition, Horton alleged that (1) Dr. Horton died April 23, 1987, from injuries he sustained when a shotgun accidentally discharged; (2) prior to Dr. Horton's death, Ford Life sold him a disability insurance policy containing life insurance coverage; (3) the policy contained a provision promising to pay Brooks Ford, Inc., a benefit in the amount of $10,000 upon the death of Dr. Horton; (4) the policy was in effect at the time of Dr. Horton's death; (5) immediately after Dr. Horton's death, Brooks Ford submitted a claim to Ford Life "requesting the balance due on the 1986 automobile be paid in full"; (6) the balance due on the automobile at the time of Dr. Horton's death was about $10,000; and (7) Ford Life "refused to pay the balance due on the loan which [Dr. Horton] maintained with Brooks Ford," and as a result, Horton was required to pay the balance due on the loan.
A copy of the insurance policy Dr. Horton purchased from Ford Life was attached to and referred to in Horton's petition. The policy has an effective date of October 7, 1986, a term of 36 months, and is in the original amount of $12,266.40. The policy states: The policy does not describe or identify the debt it purports to cover other than to declare that Brooks Ford is the creditor beneficiary of the policy.
On May 18, Ford Life, claiming that Horton failed to state facts sufficient to constitute a cause of action against Ford Life, demurred to Horton's petition. Following a hearing, the district court sustained Ford Life's demurrer and granted Horton 2 weeks to file an amended petition.
On June 23, Horton filed an amended petition alleging substantially the same facts alleged in her original petition, but adding that because she paid the debt of Dr. Horton, she became subrogated to any claim he might have against Ford Life by virtue of the policy it issued.
On June 29, Ford Life demurred to the amended petition for its failure to state facts sufficient to constitute a cause of action. The district court sustained the demurrer and granted Horton 14 days to file a second amended petition.
In her second amended petition, Horton added that pursuant to Neb.Rev.Stat. §§ 30-24,125 and 30-24,126 (Reissue 1989), she was entitled to bring this lawsuit for and on behalf of Dr. Horton. She further alleged that on November 6, 1989, Horton, then known as Virginia Cookson, signed an "Affidavit for Collection of Personal Property" pursuant to the Nebraska Probate Code.
A conformed copy of that affidavit was attached to and referred to in Horton's second amended petition. The affidavit states that Virginia Cookson is the successor of Dr. Horton and that as such, and pursuant to §§ 30-24,125 and 30-24,126, she is entitled to any money due and owing to him, any tangible personal property of his, and all instruments evidencing a debt, obligation, stock, or chose in action belonging to Dr. Horton.
Also attached to the second amended petition was a document entitled "Affidavit for Transfer of Decedent's Motor Vehicle." That "affidavit" states that Virginia Cookson is the surviving spouse of Dr. Horton and that Dr. Horton died seized of a 1986 Ford Tempo. This "affidavit" is not signed by Horton, dated, notarized, or specifically referred to in Horton's second amended petition.
On August 7, Ford Life demurred to Horton's second amended petition. After a hearing at which only Ford Life's counsel appeared, the district court sustained the demurrer and granted Horton until September 11 to file a third amended petition.
On October 28, Horton filed a motion for leave to file a third amended petition, asserting that her counsel had moved his office prior to receiving Ford Life's demurrer to the second amended petition and that she had not received notice of the hearing on the demurrer until October 20.
On November 5, the district court held a hearing at which (1) the court sustained Horton's motion to file a third amended petition, (2) Horton filed her third amended petition, and (3) Ford Life demurred to the third amended petition.
Horton's third amended petition is identical to her second amended petition, except that she did not attach a copy of the insurance policy to her third amended petition. No copy of the "Affidavit for Transfer of Decedent's Motor Vehicle" was attached to, nor was it referred to in, Horton's third amended petition.
Upon Ford Life's demurrer to Horton's third amended petition, the trial court sustained the demurrer and dismissed Horton's lawsuit.
Horton claims that the district court erred in (1) sustaining the demurrer of Ford Life and (2) dismissing her lawsuit.
When reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts well pled and the factual and legal inferences which may be reasonably deduced from such facts, but does not accept conclusions of the pleader. See, Durand v. Western Surety Co., 245 Neb. 649, 514 N.W.2d 840 (1994); Lawyers Title Ins. Corp. v. Hoffman, 245 Neb. 507, 513 N.W.2d 521 (1994).
In considering a demurrer, a court cannot assume the existence of a fact not alleged, make factual findings to aid the pleadings, or consider evidence which might be adduced at trial. Id.
A statement of "facts sufficient to constitute a cause of action," as used in Neb.Rev.Stat. § 25-806(6) (Reissue 1989), means a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff. Lawyers Title Ins. Corp., supra; Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993).
In ruling on a demurrer, the petition is to be construed liberally; if, as so construed, the petition states a cause of action, the demurrer is to be overruled. Wheeler, supra.
A demurrer reaches an exhibit filed with the petition and made a part thereof, so that a court can consider such exhibit in...
To continue reading
Request your trial
-
Gibb v. Citicorp Mortg., Inc., S-92-1107
...of the events, acts, and things done or omitted which shows a legal liability of the defendant to the plaintiff. Horton v. Ford Life Ins. Co., 246 Neb. 171, 518 N.W.2d 88 (1994); Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 In determining whether a cause of action has been state......
-
Tilt-Up Concrete, Inc. v. Star City/Federal, S-99-799.
...thereof, so that a court can consider such exhibit in determining whether the petition states a cause of action. Horton v. Ford Life Ins. Co., 246 Neb. 171, 518 N.W.2d 88 (1994). A supersedeas bond, however, serves only to suspend further proceedings on the judgment or decree appealed from.......
-
Nebraska Beef, Ltd. v. Universal Sur. Co., A-98-1373.
...moral obligation to do so or to protect his or her own rights or interests or to save his or her own property. Horton v. Ford Life Ins. Co., 246 Neb. 171, 518 N.W.2d 88 (1994); Rawson v. City of Omaha, 212 Neb. 159, 322 N.W.2d 381 (1982); Cagle, Inc., supra. The doctrine of subrogation is n......
-
Goff v. Weeks, S-92-723
...... circumstances surrounding the actor; his life, character, and mental condition. [246 Neb. 164] ... See Fremont Nat. Bank & Trust Co. v. Beerbohm, 223 Neb. 657, 392 N.W.2d 767 ......