Universal Life Ins. Co. v. Berry
| Decision Date | 12 May 1936 |
| Docket Number | Case Number: 25503 |
| Parties | UNIVERSAL LIFE INSURANCE CO. et al. v. BERRY |
| Court | Oklahoma Supreme Court |
¶0 1. TRIAL - Demurrer to Evidence - Effect in Trial to Court.
The rule providing that in passing upon a demurrer to the evidence, in jury trials, the truth of the evidence attacked, together with all reasonable inferences and conclusions that may be drawn therefrom, must be indulged by the court, has no application to trials to the court, without the intervention of a jury. Luster et al. v. First Nat. Bank in Oklahoma City, 111 Okla. 168, 239 P. 128.
2. SAME - Demurrer to Evidence Effective as Motion for Judgment or Nonsuit.
The legal effect of a demurrer to the evidence by the opposing party after his adversary has closed his case is the same as that of a motion for judgment, or for nonsuit. Luster et al. v. First Nat. Bank in Oklahoma City, 111 Okla. 168, 239 Pac. 128.
3. APPEAL AND ERROR - Requisites of Joint Assignment of Error.
A joint assignment of error must affect all jointly and not severally as to all who join in it, or it will be good as to none. Haley v. Wyte, 169 Okla. 406, 38 P.2d 910.
Appeal from Court of Common Pleas, Tulsa County; Leslie Webb, Judge.
Action by Simon E. Berry to recover the cash surrender value of an insurance policy brought against the North Carolina Life Insurance Company, Woodmen Union Life Insurance Company, and Universal Life insurance Company. From a judgment in favor of the plaintiff, defendants appeal. Affirmed.
F.E. Young and W.A. Blakeburn, for plaintiffs in error.
Joe W. Simpson, for defendant in error.
¶1 This is an appeal from the court of common pleas of Tulsa county. The action was commenced by Simon E. Berry, as plaintiff, against the North Carolina Life Insurance Company, a North Carolina corporation, Woodmen Union Life Insurance Company, an Arkansas corporation, and Universal Life Insurance Company, a Tennessee corporation, as defendants.
¶2 In the petition of the plaintiff it was alleged that on December 20, 1924, the defendant North Carolina Insurance Company had issued to the plaintiff a certain policy of insurance in consideration of payment of an annual premium of $104.38 over a period of ten years; that said policy contained a table of cash surrender values whereby said defendant agreed to pay the amount named in said table on the surrender of the policy. It was further pleaded that subsequently the defendant Woodmen Union Life Insurance Company had assumed the obligation contained in said policy and that plaintiff had continued paying premiums to said defendant; that the plaintiff had paid eight of the required premiums and that the cash surrender value payable under the terms of the policy amounted to the sum of $789; that during September of 1932, the defendants Woodmen Union Life Insurance Company and Universal Life Insurance Company entered into a certain reinsurance agreement between themselves pursuant to decree of the chancery court of Pulaski county, Ark., and that this agreement had been approved by the Insurance Commissioners of the states of Arkansas and Tennessee, respectively, but had never been approved by the Insurance Commissioner of the state of Oklahoma; that plaintiff had not consented to the reinsurance agreement between said defendants and had not participated in the proceedings had in the chancery court of Pulaski county, Ark.; that plaintiff had demanded the cash surrender value payable under the terms of his said policy and that the same had been refused. The petition as originally framed consisted of three causes of action, the first seeking to place all of the companies in a receivership; the second to recover the premiums with interest from date of payments; and third, to recover the cash surrender value named in the original policy. The relief sought under the first cause of action was denied by the trial court, and plaintiff dismissed as to the second cause of action, and the cause was finally tried upon the third cause of action. The defendants, after their separate demurrers had been overruled, filed separate answers in the trial court. The answer of the defendant North Carolina Life Insurance Company being in the nature of a general denial coupled with specific allegation that demand had not been made upon it for payment of the cash surrender value of the policy. The answer of the defendant Woodmen Union Life Insurance Company, in addition to a general denial, pleaded the reinsurance agreement between itself and its codefendant, Universal Life Insurance Company. The answer of the Universal Life Insurance Company, in addition to a general denial, specifically pleaded the reinsurance agreement entered into between itself and the Woodmen Union Life Insurance Company, and alleged that it occupied the position of trustee and was not liable to the defendant otherwise than as in said reinsurance agreement set forth and limited. The cause was tried to the court without the intervention of a jury, and at the close of plaintiff's evidence the defendants demurred thereto, and when their demurrers were overruled offered no evidence and stood thereon. Thereupon the court rendered judgment in favor of the plaintiff and against the defendants jointly and severally in the sum of $789. The defendants filed separate motions for new trial, and these being overruled, they prosecute this appeal. The parties will hereinafter be referred to as they appeared in the trial court.
¶3 The defendants filed in this court a joint petition in error and assign therein six specifications of error, which are presented in their brief under the sole proposition that the court erred in overruling their demurrer to the plaintiff's evidence.
¶4 The evidence of the plaintiff consisted of the insurance policy, a copy of the reinsurance agreement between the defendants Woodmen Union Life Insurance Company and Universal Life Insurance Company, certain correspondence, and testimony of the plaintiff and his attorney relative to demand for payment of the cash surrender value named in the policy, and also an affidavit from the Assistant Insurance Commissioner of the state of Oklahoma to the effect that this reinsurance agreement had never been approved by the State Insurance Commissioner of Oklahoma.
¶5 The judgment, in so far as it affects the defendants North Carolina Life Insurance Company and Woodmen Life Insurance Company, is not directly assailed in the brief which the parties have filed in this court, but the contention is advanced that the Universal Life Insurance Company was merely a trustee and therefore liable only as such trustee, and in this connection we are cited to 65 C. J. pages 661, 663, Cavanaugh v. O'Connor (Iowa) 186 N.W. 907, and Zeideman v. Molasky (Mo. App.) 94 S.W. 754. While the principles of law enunciated in the above-cited authorities are correct, we do not deem them applicable to the record here presented.
¶6 The rule relative to the effect of the demurrer to the evidence is stated in Davis v. Wallace, 169. Okla. 497, 37 P.2d 602, as follows:
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