World Mut. Ben. Ass'n v. Worthing

• Decision Date: 24 January 1900
• Citation: 81 N.W. 620,59 Neb. 587
• Parties: WORLD MUT. BEN. ASS'N v. WORTHING.
• Court: Nebraska Supreme Court

59 Neb. 587

81 N.W. 620

WORLD MUT. BEN. ASS'N

v.WORTHING.

Supreme Court of Nebraska.

Jan. 24, 1900.

Syllabus by the Court.

1. A verdict, supported by competent evidence, will not be set aside unless clearly or palpably wrong.

2. An instruction, the giving of which is not assigned as error, is the law of the case, whether right or wrong.

3. The jury are bound to follow the instructions given by the court, and act on them, in making up their verdict.

4. A defense not pleaded cannot be considered in the decision of the case.

5. An assignment of error, directed against a group of instructions, will be considered no further than to ascertain that one of the instructions complained of was properly given.

6. An assignment of error, that the district court erred in refusing to admit the evidence of a certain witness, will be overruled, if the record shows that a portion of the evidence was in fact admitted.

Error to district court, Douglas county; Fawcett, Judge.

Action by Ada Worthing against the World Mutual Benefit Association. Judgment for plaintiff. Defendant brings error. Affirmed.Jas. W. Carr, for plaintiff in error.

T. J. Mahoney, for defendant in error.

SULLIVAN, J.

This action was instituted by Ada Worthing against the World Mutual Benefit Association to recover the sum of $1,000, claimed to be due on a policy of life insurance issued by the defendant to Zeno Worthing. The insurance was originally taken out for the benefit of Vina Worthing, the wife of the insured, but, for reasons not necessary to mention, the old policy was, in June, 1894, superseded by a new one, in which the plaintiff was designated as the beneficiary. The trial of the cause to a jury in the district court of Douglas county resulted in a verdict and judgment against the defendant.

One of the contentions of counsel for the company is that the policy was obtained by means of false representations made by Zeno Worthing in regard to the condition of his health at and before the time of applying to the defendant for insurance. This question was fairly submitted to the jury, under proper instructions, and their finding, being supported by competent evidence, and not being clearly and palpably wrong, must be permitted to stand.

Another contention is that the policy lapsed on account of a failure on the part of the insured to pay an assessment which became due on May 15, 1894. Upon this point the court instructed the jury as follows: “You are instructed that by the issuance of the policy sued on, the defendant waived all of the objections on the ground of failure to pay promptly an assessment due prior to the issuance of said policy; and you are further instructed that any default in payment, or failure to make payment within the time required, prior to the actual issuance of the policy sued on, is wholly immaterial for the purposes of this case, and you should not consider any such default in the making up of your verdict.” The giving of this instruction is not assigned as error, and we have, therefore, no occasion or authority to review it for the purpose of determining whether it is right or wrong. It became the law of the case, and the jury were bound to follow it and act on it in making up their verdict. Cobb, C. J., discussing this question in Railroad Co. v. Hall, 33 Neb. 229, 50 N. W. 10, used this language: “If the fourth and sixth instructions given by the court at the request of the defendant were followed by the jury, they could not find for the plaintiff upon the theory first above stated, upon the evidence in the case. It is not necessary to decide, nor do I, whether the law is correctly given in the said instructions. It is the duty of the jury in all cases to follow the instructions given them in charge by the court, and, if they do not do so, the verdict should be set aside, and a new trial ordered.” To the same effect are Aultman v. Reams, 9 Neb. 487, 4 N. W. 81;Limburg v. Insurance Co., 90 Iowa, 709, 57 N. W. 626, 23 L. R. A. 99; Howell v. Pugh, 25 Kan. 96; Irwin v. Thompson, 27 Kan. 643; Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797; Cunning ham v. Magoun, 18 Pick. 13.

A further contention of the defendant is that Zeno Worthing failed to make prompt payment of assessments for July and August, 1894, and that, by reason of such failure, the new policy lapsed,...