Nebraska Mut. Ins. Co., Inc. v. Borden
| Decision Date | 23 April 1937 |
| Docket Number | 29811. |
| Citation | 272 N.W. 767,132 Neb. 656 |
| Parties | NEBRASKA MUT. INS. CO., INC., v. BORDEN. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
When the judgment is clearly against the weight of the evidence it is the duty of the court to set it aside.
Appeal from District Court, Pawnee County; Raper, Judge.
Action by the Nebraska Mutual Insurance Company, Incorporated against Louis C. Borden. Judgment for defendant, and plaintiff appeals.
Reversed and remanded with directions.
Tunison & Joyner, of Omaha, for appellant.
A. E. Henry, of Pawnee City, for appellee.
Heard before GOSS, C. J., ROSE, GOOD, PAINE, and CARTER, JJ., and RYAN and KROGER, District Judges.
The Nebraska Mutual Insurance. Company, an assessment insurance company organized under the laws of the state of Nebraska, brought this action against Louis C. Borden, a member, to collect assessments for the purpose of paying losses it had sustained. The petition alleged in substance that the plaintiff company was incorporated in the year 1892, and continually since that time had been in the business of insuring its members against loss from fire, tornado and windstorm; and that the defendant became a member by making an application in writing. Pursuant to the application, a policy of insurance was issued to him, and during the time of his membership assessments were made for the years 1931 to 1933, inclusive, aggregating $43.75; that assessments represent the defendant's proportionate share of the losses and expenses of the company; that he has failed, neglected and refused to pay the same. The answer of the defendant was a general denial. A jury was waived and trial was had to the court. The court entered judgment in favor of the defendant and dismissed the plaintiff's petition with costs. Motion for a new trial was filed and overruled. Plaintiff appeals to this court.
The appellee has not filed any brief in this court, and consequently the court is not advised as to the propositions upon which he relies to sustain the judgment of the trial court.
The evidence consists solely of the deposition of W. T. Wilson the secretary of the plaintiff company. It appears that his duties were to keep the minutes of all meetings of the directors of the company, and to keep its books, records, and perform any other duties required by the board of directors. It appears from the testimony that the defendant applied for membership and insurance in the plaintiff company on April 4, 1927, and that a policy was issued to him in the sum of $3,450, indemnifying him against loss by fire, lightning, tornado and windstorm. This policy was reduced on January 31, 1928, to $2,650. The defendant paid his assessments up to and including the assessment levied on April 2, 1930. The assessments which are the subject of this suit were levied January 21, 1931, February 17, 1931, January 19, 1932, and January 17, 1933. It also appears in the testimony that the aggregate amount of these assessments is the sum of $38.43 instead of $43.75 as stated in the petition, there having been an error of $5.32 in the computation of one of the assessments. The sections of the statute applicable to an assessment insurance association, such as the plaintiff, are sections 44-402 and 44-901 to 44-911, Comp.St.1929. Construing the rights of the parties in the light of these sections of the statute, we are at a loss to understand how the learned trial court arrived at the...
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