Palmer v. Capitol Life Ins. Co. of Denver, Colo., 33407

• Decision Date: 11 December 1953
• Docket Number: No. 33407,33407
• Citation: 157 Neb. 760,61 N.W.2d 396
• Parties: PALMER v. CAPITOL LIFE INS. CO., OF DENVER, COLO., Inc.
• Court: Nebraska Supreme Court

Page 396

61 N.W.2d 396

157 Neb. 760

PALMER v. CAPITOL LIFE INS. CO., OF DENVER, COLO., Inc.

No. 33407.

Supreme Court of Nebraska.

Dec. 11, 1953.

Syllabus by the Court.

1. A summary judgment is authorized only when the moving party is entitled to a judgment as a matter of law. If there is a genuine issue of fact to be determined, a summary judgment may not be properly entered.

2. The court examines the evidence on motion for summary judgment, not to decide any issue of fact, but to discover if a real issue of fact exists.

3. In the absence of a bill of exceptions, no question will be considered, a determination of which requires an examination of the evidence produced in the district court.

4. Any assignment of error that requires an examination of evidence cannot prevail on appeal in the absence of a bill of exceptions.

5. If there is no bill of exceptions, it is presumed in this court that an issue of fact raised by pleading was sustained by evidence and that it was correctly decided by the district court.

6. An unambiguous insurance policy must be enforced like any other contract according to the terms used.

7. A provision in a group insurance policy, that irrespective of any other mode of termination the insurance upon the life of any person insured thereunder shall cease and determine upon termination of the employment of such person with the employer, is clear and unambiguous and must be enforced.

8. The provision of a policy of group insurance which gives a former employee after termination of employment, which by the terms of the policy terminates the insurance, an option to continue insurance upon application within 31 days and the payment of necessary premium, without any examination as to insurability, does not extend the coverage of the policy to a former employee who died during that period, without having made such application.

Holtorf & Harris, Gering, for appellant.

Mothersead, Wright & Simmons, Scottsbluff, for appellee.

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

BOSLAUGH, Justice.

Appellee issued to Great Western Sugar Company, herein identified as the company, a group life insurance policy for the benefit of certain of its employees during their period of employment. Lee Otto Palmer, herein designated as Palmer, was on and prior to April 14, 1952, one of the employees covered by the indemnity of the contract of insurance. He was given a certificate of insurance on his life under and subject to the terms and conditions of the group life insurance contract made by appellee with the employer in which appellant was designated as beneficiary. Her husband died. She brought this action to recover from appellee the amount of the certificate of insurance.

The cause of action alleged by appellant was: That on September 1, 1951, appellee issued to Palmer a certificate of insurance on his life under and subject to the terms of the group life policy made by it with the company in the sum of $2,915, and on that date an endorsement of that fact was made on the policy; that a copy of the certificate was made a part of the petition by the attachment of it to the pleading; 'That on the 14th day of April, 1952, the insured, Lee Otto Palmer was paid by Great Western Sugar Co, based upon his regular pay rate up to the 29th day of April, 1952 inclusive'; that he died on April 21, 1952; and that appellant was the beneficiary of the policy of insurance. The certificate contained provisions, as shown by the copy thereof made a part of the petition, that the insurance afforded the employee by the group life policy would continue until his employment by the employer terminated, and if the employment terminated the insurance should terminate at the same time without regard to the cause of termination of the employment.

The answer of appellee contained these matters: Admitted that appellee issued the certificate of insurance on the life of Palmer in the amount and manner substantially as claimed by appellant, and that she was named therein as beneficiary; alleged that the insured was on and prior to April 14, 1952, and employee of the company; that at the end of the shift on that date he left the employment of his employer voluntarily; that the insured was thereafter paid by the company all sums to which he was entitled by reason of his contract of employment; that he was paid and he accepted and retained the wages earned by him in the payroll period prior to April 14, 1952, less deductions required by law; that the insured was paid an additional amount by check, 80 times his hourly rate of pay, less lawful required deductions, which was earned by him before April 14, 1952, and became due to him upon the termination of his employment; that he accepted, endorsed, and retained the check until his death; that thereafter appellant endorsed and presented the check for payment, and she received and has retained the proceeds thereof; that from and after April 14, 1952, Palmer was not an employee of the company; that all matters between him and the company terminated with the payments aforesaid; that the relationship of employee and employer terminated on April 14, 1952; that Palmer thereafter died on April 21, 1952; that there was no insurance in force on his life at the time of his death; that Palmer was not entitled to receive from the company any amount in addition to his regular wage rate during the preceding payroll period unless his employment was terminated; that he received and retained the amount as stated above; that he and appellant or either of them was not entitled to the check described above issued by the company to him or the proceeds thereof, unless his employment with it was terminated; and that by reason of its acceptance and its reduction to cash appellant was estopped to deny that the employment of her husband by the company terminated on April 14, 1952. Appellee denied the matters alleged in the petition not by it admitted by its answer to be true.

Appellant by reply admitted the payment of wages to Palmer as stated in the answer on April 16, 1952; admitted that he received on April 18, 1952, the check for 80 times his hourly rate of pay appellee claimed was issued by the company to him after April 14, 1952; that it was for vacation pay and paid him to and including April 29, 1952; and that during that period he was on vacation and was an employee of the company until the end of that period. The appellant denied the matters set forth in the answer which were not admissions of allegations of the petition.

Appellee made a motion for summary judgment as authorized by and in accordance with the Summary Judgment Act. Sections 25-1330 to 25-1336, R.S.Supp., 1951. The motion was heard by the court. An affidavit and deposition were offered and received in evidence. The court found that Palmer resigned his employment with the company on April 14, 1952, and his employment then terminated; that the termination of the employment terminated the group life insurance policy; that no issue of fact existed; and that defendant's motion for summary judgment should be sustained. The motion was sustained, a judgment of dimissal rendered, and the motion of appellant for new trial was denied.

The formal issue of fact made by the pleadings was whether Palmer was or was not an employee of the company at the time of his death on April 21, 1952. The fact in that regard was obviously a material one. The motion for a summary judgment challenged the existence of the issue as a real or...