Weckerly v. Taylor

• Decision Date: 21 December 1906
• Docket Number: 14,905
• Citation: 110 N.W. 738,77 Neb. 886
• Parties: JAMES M. WECKERLY, APPELLEE, v. CADET TAYLOR ET AL., APPELLANTS
• Court: Nebraska Supreme Court

110 N.W. 738

77 Neb. 886

JAMES M. WECKERLY, APPELLEE, v. CADET TAYLOR ET AL., APPELLANTS

No. 14,905

Supreme Court of Nebraska

December 21, 1906

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed with directions.

REVERSED.

George W. Shields, for appellants.

E Wakeley, A. C. Wakeley and Greene, Breckenridge & Matters contra.

JACKSON, C. ALBERT, C., concurs. DUFFIE, C., took no part in the decision.

OPINION

JACKSON, C.

On March 9, 1901, plaintiff obtained judgment against Cadet Taylor and others, the judgment being in part unsatisfied, and on February 20, 1904, this action was instituted by the plaintiff against Cadet Taylor, Emma L. Taylor, his wife, and the Employers' Liability Assurance Corporation, Limited. The action is in the nature of a creditor's bill, and seeks to subject money, which it is claimed is due the defendant Cadet Taylor from the assurance corporation on an accident policy, to the satisfaction of the judgment against Taylor. The defendant Emma L. Taylor answered, claiming, in substance, that she was the beneficiary named in the accident policy, which was issued at her instance and request and the premium paid out of her own funds; that she applied for a policy wherein she was to be named as the beneficiary; that after the policy was issued her husband made a formal assignment thereof for the purpose of curing any defects or ambiguities in the policy from which it might appear that any part of the moneys payable under its terms might be payable to the defendant Cadet Taylor; that it was originally intended by all the parties that she should be the sole beneficiary named in the policy. She also asked that the policy might be reformed, if it should be determined that any part of the moneys that might be payable under the provisions of the policy were payable to Cadet Taylor.

The assurance corporation answered, denying that it made any agreement with the defendant Emma L. Taylor to pay her any moneys under the provisions of the policy, except in case of the accidental death of Cadet Taylor, and admitting a liability of $ 1,250, which it offered to pay to the person entitled thereto. The decree was for the plaintiff, requiring the assurance corporation to pay the plaintiff $ 1,250, admitted liability. The defendant Emma L. Taylor appeals.

The facts with reference to the issuance of the policy are: That Cadet Taylor had left his home in Omaha for the purpose of a journey. His wife, Emma L. Taylor, requested her brother-in-law, W. B. Taylor, to procure an accident policy payable to her. W. B. Taylor applied to Frank S. Brownlee district manager of the Preferred Accident Insurance Company of Omaha, for such a policy. Brownlee came to Taylor's office with a printed application with blanks where the necessary information was to be written in. The application was filled out by Brownlee, and signed: "Cadet Taylor, by W. B. Taylor." The only reference to the beneficiary in the application is in this language: "Policy to be payable, in case of death by accident under its provisions, to (beneficiary's name in full) Emma L. Taylor. Residence--Omaha, Neb. Relationship--wife." It appears that the Preferred Accident Insurance Company would not issue a policy except upon the written application of the person whose life or safety was thereby insured, and Brownlee applied to Webster, Howard & Company, agents for the defendant assurance corporation, for a policy, furnishing the necessary and required information for that purpose. The defendant assurance corporation issued its policy,...