Yates v. New England Mut. Life Ins. Co.

• Decision Date: 26 June 1928
• Docket Number: No. 25228.,25228.
• Parties: YATES v. NEW ENGLAND MUT. LIFE INS. CO.
• Court: Nebraska Supreme Court

117 Neb. 265
220 N.W. 285

YATES
v.
NEW ENGLAND MUT. LIFE INS. CO.

No. 25228.

Supreme Court of Nebraska.

June 26, 1928.

[220 N.W. 285]

Syllabus by the Court.

Where an insurance company, before being sued, as in this case, bases its refusal to pay life insurance to the beneficiary solely upon the ground that the policy had lapsed before the death of the insured, it will not be permitted to assert other and different defenses after litigation is begun.

In such case, where the answer of the insurance company sets up a different ground of defense than that given as a reason for nonpayment of the policy, and no reply is filed, but the action is tried as though there was a reply, if facts showing an estoppel are admissible and admitted for other purposes, it is not necessary that estoppel be specially pleaded.

Life policies written by insurance companies are to be construed most strongly against them.

An incontestable clause in a life policy, “After one year from the date of issue, this policy shall be incontestable except for nonpayment of premiums,” means what it says, and time for contest begins to run from the “date of issue.”

An incontestable clause in a life policy is for the benefit of both insured and beneficiary, and applies before and after the death of insured.

It is not necessary to specially plead an incontestable clause in a life policy when it is attached to, and made a part of, the petition.

It appearing from the pleadings and evidence that the company made no contest, of any sort, of the policy in suit, for more than eight years after the “date of issue,” it cannot now make the defense of suicide or that insured came to his death by his own hand or act.

It appearing, when plaintiff demanded payment of the policy, the company refused the same for the sole reason that the policy lapsed for nonpayment of premiums before the death of insured, it cannot now defend on other or different grounds, of which it had knowledge as being actual or probable.

Death of insured being admitted in the company's answer, and whether the policy had lapsed during his life for nonpayment of premiums being the only defense available, it was error for the trial court to withdraw the case from the jury.

Under the pleadings and evidence, the jury should have been permitted to determine whether insured died while the policy was in force.

Appeal from District Court, Douglas County; Leslie, Judge.

Action by Anne K. Yates against the New England Mutual Life Insurance Company. Judgment of dismissal and plaintiff appeals. Reversed and remanded for a new trial.

[220 N.W. 286]

Frank C. Yates and Nelson C. Pratt, both of Omaha, for appellant.

C. J. Baird and L. C. Hupp, both of Omaha, for appellee.

Heard before GOSS, C. J., DEAN, THOMPSON, EBERLY, and HOWELL, JJ., and CHASE, District Judge.

HOWELL, J.

This is an appeal from a judgment of the district court for Douglas county, dismissing plaintiff's cause of action. Appellant was plaintiff, and the parties will hereafter be referred to as plaintiff and company.

The action was based upon a policy of insurance for $2,000, issued June 14, 1913, to John B. Lindsey, husband of plaintiff, she being named as beneficiary.

At the close of plaintiff's testimony, the company moved for a directed verdict. The court sustained that motion, discharged the jury and ordered plaintiff's action dismissed.

The pleadings have given us some trouble, and we deem it necessary to analyze them by paragraphs.

Paragraph 1 of the petition alleges the corporate entity of the company; the issuance of the policy to John B. Lindsey on June 14, 1913, a copy of the policy is attached to the petition, and made a part thereof, and its acceptance by Lindsey, “ now deceased,” at Omaha. Paragraph 1 of the answer admits those allegations.

Paragraph 2 of the petition avers that Lindsey resided in Omaha and paid all dues required to keep the insurance in force to and including January 14, 1915. Paragraph 2 of the answer admits the residence of Lindsey, concedes the insurance was in force to January 14, 1914, and denies payment of dues beyond that date.

Paragraph 3 of the petition alleges that, about April 13, 1914, Lindsey was employed and resided in Omaha, disappeared at that time and has not since been heard from. Paragraph 3 of the answer denies those allegations for want of sufficient information to admit them. Having admitted Lindsey's death, in paragraph 1, there is little, if anything, left of paragraphs 3 of the petition and answer.

Paragraph 4 of the petition alleges the plaintiff was the wife of Lindsey; vigilant efforts to find him; inability to trace him; his absence for seven years, and his death about April 13, 1914. Paragraph 4 of the answer states lack of information to admit, and therefore denies, those allegations. Affirmative matters of defense are alleged: (1) Lindsey died, if dead, “by his own hand or act” within one year from the date of the policy; (2) no proof was furnished of the death of Lindsey; and (3) a tender of premiums paid.

The only tender made was the offer in the answer. It was not actually made or kept good, and was offered only “in case proof should be furnished of his death as alleged in the petition.” There was no allegation in the petition that Lindsey died by his own hand, or act, or suicided. As stated before, his death was admitted, and it only remained to be shown when it occurred, and not necessarily how it occurred. The denial was, death did not occur about April 13, 1914. By turning to paragraph 5 of the answer, it will be observed the company alleged the policy “had not been in force” one year, “and the first year's premium had not been paid,” by reason of which, “said policy lapsed.”

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