Norfolk Nat. Bank v. Flynn

• Decision Date: 08 March 1899
• Citation: 58 Neb. 253,78 N.W. 505
• Parties: NORFOLK NAT. BANK v. FLYNN ET AL.
• Court: Nebraska Supreme Court

58 Neb. 253

78 N.W. 505

NORFOLK NAT. BANK

v.FLYNN ET AL.

Supreme Court of Nebraska.

March 8, 1899.

Syllabus by the Court.

The evidence in this case examined, and held insufficient to show an assignment of a policy of life insurance or of rights conferred by its provisions.

Appeal from district court, Douglas county; Powell, Judge.

Action by the Norfolk National Bank against John F. Flynn and wife and the New York Life Insurance Company. Judgment for plaintiff, and defendant Flynn and wife appeal. Reversed.Geo. L. Whitham, for appellants.

Geo. E. Pritchett and James H. McIntosh, for appellee.

RYAN, C.

The Norfolk National Bank filed its petition in the district court of Douglas county, wherein it prayed that a policy of insurance issued by the New York Life Insurance Company, one defendant, on the life of John F. Flynn, another defendant, might be decreed the property of plaintiff, who, as assignee of such policy, as it was alleged, was entitled to be subrogated to the rights of Honnora Flynn, and that the defendant insurance company might be restrained by injunction from paying to the Flynns anything on account of said policy. This policy was dated August 4, 1879. By its terms, its tontine dividend period was to be completed August 4, 1894, after which period the accumulations were secured to Honnora Flynn in either one of five different optional methods named. Of these the third was: “To withdraw the entire equity (i. e. the accumulations that belong to this policy) in cash.” By its petition, plaintiff alleged that the policy had been assigned to it as security for the payment of a promissory note owing to plaintiff by John F. Flynn; that said note had never been paid; that Flynn had neglected and refused to pay premiums as they fell due; that payment of these had been made by plaintiff; and that, within the time fixed by the terms of the policy for making such election, plaintiff, as assignee of the policy, had notified the insurance company that plaintiff elected to receive the benefit accruing August 4, 1894, under the third subdivision of said policy, to wit: “To withdraw the entire equity (i. e. the accumulations that belong to this policy).” There was a decree as prayed, and, the accumulations above referred to having been found to be equal to $634.18, the insurance company was required to pay to plaintiff the said sum, to be applied on the indebtedness due it from John F. Flynn. It was further adjudged that John F. Flynn and Honnora Flynn had no interest, right, or title in the policy, and these parties have appealed.

There were presented by the evidence and in argument several questions which we shall not consider; for, in our opinion, there is at the threshold a question which, in the view we take of it, renders unnecessary the consideration of any other, and that question is whether or not the policy ever was assigned to the bank. In reference to the loan as to which plaintiff claims this policy was assigned as security, Mr. Bucholz, plaintiff's cashier, testified that about May 14, 1888, John F. Flynn wanted to borrow $1,000, and offered to give the policy as collateral security, and that it was finally understood that Flynn might bring it down, and the bank would make the loan; that on that day Flynn signed the note, and got $1,000 then or soon afterwards; that a few days after the date of the note Flynn brought the policy to the bank, and left it there, promising to...