O'Neil v. Union Nat. Life Ins. Co.

• Decision Date: 23 March 1956
• Docket Number: No. 33870,33870
• Citation: 75 N.W.2d 739,162 Neb. 284
• Parties: Betty O'NEIL, Administratrix of the Estate of James F. O'Neil, deceased, Appellant, v. UNION NATIONAL LIFE INSURANCE COMPANY, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 739

75 N.W.2d 739

162 Neb. 284

Betty O'NEIL, Administratrix of the Estate of James F. O'Neil, deceased, Appellant, v. UNION NATIONAL LIFE INSURANCE COMPANY, a corporation, Appellee.

No. 33870.

Supreme Court of Nebraska.

March 23, 1956.

Syllabus by the Court.

1. Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration.

2. After appeal and remand a party may not add or substitute a defense substantially different from that relied on at the original trial.

3. On remand, as to matters not inconsistent or in conflict with a position taken at the former trial, the district court is clothed with a discretion to allow amendments in the further disposition of the case.

4. Where a case has been remanded with general directions to proceed in accordance with an opinion which disposes of all issues to be considered on a new trial, a judgment should be entered in favor of the party in whose favor the issues were decided.

5. Where, however, a case has been presented to this court on an issue or issues with other issues remaining for decision on remand, it is the duty of the district court to try the case and make an adjudication upon the remaining issues.

6. The statutes of this state authorize the inclusion in insurance policies of provisions for contestability on the ground that death came about during military service.

7. An insurance policy which is susceptible of more than one interpretation will be given the one most favorable to the insured.

8. Where there is no ambiguity in an insurance policy, the courts will indulge no forced construction against the insured and the policy will be interpreted according to the intention of the parties as expressed in the instrument.

9. A death certificate from the War Department is not admissible in evidence in and of itself as proof of cause of death.

10. Where there is uncontradicted and conclusive evidence of the cause of death other than a certificate from the War Department the admission of the certificate in evidence is error without prejudice.

11. Where evidence is offered by deposition and it appears that the form of questions is technically objectionable, but the court on inspection can see that the answers furnish proper evidence, exceptions to the questions will be overruled and the testimony admitted.

12. The diagram of a location made, identified, and described by a witness to illustrate testimony given by the witness is admissible in evidence.

13. Where a policy of life insurance insures a person against death except in military or naval service in time of war the exception applies only if death is occasioned by actual service or is an incident thereof.

Baylor, Evnen & Baylor, Davis, Healey, Davies & Wilson, Lincoln, for appellant.

F. C. Radke, Frank A. Peterson, Lincoln, for appellee.

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

YEAGER, J.

This is an action at law by Betty O'Neil, administratrix of the estate of James F. O'Neil, deceased, plaintiff and appellant, against the Union National Life Insurance Company, a corporation, defendant and appellee, to recover $2,500, the face amount of a policy of life insurance written on the life of James F. O'Neil, now deceased, interest thereon from the date of his death, and attorney's fees. The case has been previously before this court. An opinion was adopted on the former appearance and it appears as O'Neil v. Union National Life Ins. Co., 148 Neb. 469, 27 N.W.2d 837. In order that the matters now before the court may be understood it appears necessary to outline herein in considerable detail the proceedings from the commencement of the action in the district court to the present time. For convenience, James F. O'Neil will be referred to as O'Neil.

On August 29, 1944, the plaintiff, as administratrix of the estate of James F. O'Neil, filed a petition in the district court for Lancaster County, Nebraska, in which she alleged that on March 12, 1937, the defendant issued to O'Neil a policy of life insurance by the terms of which the defendant agreed to pay $2,500 to the estate of O'Neil in the event of his death. The policy, by declaration and attachment to the petition as an exhibit, became a part of the petition. In the petition it was alleged that O'Neil died on November 4, 1943. It was further alleged that demand had been made for the $2,500 but that the defendant denied liability for the amount except the sum of $245. The prayer was for $2,500, interest, and attorney's fees.

On April 10, 1945, an amended petition was filed which appears to have been at some time amended by interlineation. It was upon this petition, an answer thereto, and a reply that the case was tried before it came to this court on the former appeal. To this petition were attached three additional exhibits which were identified as 'B,' 'C,' and 'D.' These were letters from the defendant to the plaintiff.

Two paragraphs of 'B' are the following:

'You will notice by the terms of the contract that the death claim under the conditions of your husband's death is the return of the life premiums paid with interest at 5%. In addition to this we will refund the Double Indemnity premiums from the date of enrollment in the armed forces of your husband, on which date the benefits with the Double Indemnity clause are cancelled.'

'It appears that the total premiums paid, with interest and the refund of the Double Indemnity premiums will amount to approximately $245.00.'

The first paragraph of 'C' is the following:

'This file is still pending receipt of your completed claimant statement and your official notification from the War Department of the death of Capt. O'Neil. When these proofs of death are received and approved, your claim will be paid, and we will return the notification of death to you. As we previously stated, the benefits under the policy will be the return of the premiums with interest at 5% per annum.'

The body of 'D' is as follows:

'Inasmuch as we have not heard from you, we are wondering if there is anything we can do to help you complete your claim as beneficiary under the above policy. We would like to arrange an early payment of the claim and suggest that you let us have the completed from ent (form sent) you in our letter of December 27, 1943, together with such official notices and telegrams as you received notifying you of your husband's death. We will make photostatic copies of these items and they will be returned to you for your further safekeeping.'

The answer filed by the defendant contains the following:

'4. Alleges and says that at no time has this defendant denied liability under said policy, but at all times since the delivery thereof to the said James Francis O'Neil, it has recognized same to be in full force and effect.'

By the next paragraph of the answer it has asserted that no due proof of death had been supplied as required by the terms of the policy.

As already pointed out there was a reply. In the reply the plaintiff alleged that proofs of loss were furnished and further that the defendant had waived such proof.

In this state from the standpoint of pleadings the case went to trial. A jury was waived.

Upon what issues evidence was presented by the parties on that trial is not known. Whether or not any issue of fact tendered by plaintiff's petition found support in evidence does not appear. The record of that evidence has not been brought here.

The only question which it may be said was presented upon which a determination was made was that of whether or not proof of death had been made within the meaning of the requirements of the policy. The district court adjudged that no such proof had been made and on that ground dismissed the action.

From that adjudication the plaintiff appealed to this court. This court reversed the judgment of the district court on that issue and remanded the cause for further proceedings. In the opinion this court clearly indicated that the only question which was decided was that of whether or not the proof supplied by plaintiff was sufficient as a condition precedent to her right to maintain the action. In the opinion, it was stated [148 Neb. 469, 27 N.W.2d 838]: 'Consequently, the facts recited in the letter constitute a sufficient proof of death within the provisions of the policy presently before us. This being true, the furnishing of proof of death as a condition precedent to the bringing of suit has been met.'

After the determination of this court was made the defendant filed an amended answer to plaintiff's petition in the district court. In this answer, to the extent necessary to set out the allegations thereof, the defendant reiterated its former statements that the policy was in full force and effect. It alleged that the insurance policy contained the following provision: "Incontestability. This Policy shall be incontestable after one year from date of issue except for (1) * * * (2) * * * (3) Conditions as to Military Service or Naval Service in time of war. Should the Insured die before attaining the age of thirty-five, from any cause while engaged in Military or Naval Service in time of war or within six months after the termination of such service as a result thereof, the amount payable hereunder shall be limited to the premiums paid together with interest thereon at the rate of five per cent per annum, less any indebtedness thereon to the Company." It further alleged that O'Neil was on November 4, 1943, under the age of 35 years; that at that time he was engaged in military service in time of war; and that if he died on November 4, 1943, the beneficiary under the insurance policy was entitled only to the amount of the premiums paid on the policy together with interest at the rate of 5 percent per annum. This amount the...