Witt v. Old Line Bankers Life Insurance , 89 Neb. 163 ( 1911 )

Rose, J.

This is a suit to recover back an advance prémium of |237.85 paid by plaintiff to defendant on a subsequently rejected application for life insurance. A demurrer to the petition was overruled. Defendant refused to plead further. A judgment in favor of plaintiff for the full amount of his claim followed. Defendant has appealed.

The correctness of the ruling on the demurrer is the question submitted. In the petition it is alleged: Defendant is a corporation organized and doing business under the laws of Nebraska as a life insurance company. August 10, 1905, plaintiff applied to defendant in writing for insurance on his life in the sum of $5,000, and delivered the application to defendant. Defendant has the original application, and plaintiff has no copy. At the same time plaintiff paid defendant $287.85 as an advance premium in the event of the approval of his application and the issuance of a policy, and received from defendant a contract in writing, as follows: “No. 42817. Conditional Receipt. Amount $237.85. Received at Scribner, State of Neb., this 10 day of Aug., 1905, of John Witt, the sum of $237.85, in payment of premium upon $5,000 policy which he has this day applied for to the Old Line Bankers Life Insurance Company of Lincoln, Nebraska. Policy to date at issue, providing said application is approved by said company; otherwise said payment is to be returned to said applicant. It is hereby agreed and understood that a refusal, after being written, on the part of- the applicant to submit to a- medical examination, shall forfeit the payment herein. It is understood and agreed that all the premiums are due in advance and payable in cash, therefore, when notes are taken by the agent as an accommodation to the party insured, any refusal afterwards to accept the policy, or any tender of said policy back to the company or to'an agent, will not in anywise release the party insured from liability on said notes, as the same must be promptly paid, whether the party desires to continue insurance or otherwise. John Witt, Applicant. C. K. Huntington, Agent.”

The petition further alleges: Huntington was the agent of defendant, and was duly qualified to make the contract. The contract was executed in duplicate and a copy delivered to each of the parties. Defendant declined to approve plaintiff’s application, and ever since has refused to issue a life insurance policy to plaintiff. No part of the advance premium paid to defendant has ever been returned to plaintiff. The amount due plaintiff is also pleaded, and there is a prayer for judgment therefor. The paragraph alleging performance of the contract on the part of plaintiff is as follows: “At said time the defendant named to the plaintiff O. C. Hopper as a physician to whom the plaintiff should submit himself for a medical examination, and thereupon the plaintiff did submit to a medical examination by said physician, who did make a medical examination of plaintiff in writing, and delivered the same to the defendant.”

1. The sufficiency of the petition is challenged on the ground it is nowhere stated therein that the receipt pleaded was executed by defendant. Defendant is not a party to the receipt. The place for the signature is filled as follows: “C. K. Huntington, Agent.” The word “agent” is merely descriptive of the person. Morgan v. Bergen, 3 Neb. 209. The receipt containing the conditional promise to return the advance premium, therefore, purports on its face to be the contract of “C. K. Huntington,” and not the contract of the “Old Line Bankers Life Insurance Company,” defendant. Following earlier cases,- this court in Fowler v. McKay, 88 Neb. 387, ruled: “Parties contracting in their own names do not exclude their personal responsibility by describing themselves as agents of another, and such a contract is their obligation, and not that of their principal. Persons v. McDonald, 60 Neb. 452; Morgan v. Bergen, 3 Neb. 209.” Having sued the Old Line Bankers Life Insurance Company on a contract purporting on its face to be the personal obligation of another, it was incumbent on plaintiff, at least, to allege in some form facts showing that defendant executed it or that it is the obligation of defendant, i Allegations pleading these essential facts cannot be found in the petition, and they should not be inferred from equivocal or doubtful language, since the petition is being tested by demurrer and must be construed most strongly against the pleader. Gibson v. Parlin & Orindorff, 13 Neb. 292. ' Failing to show by proper allegations' that defendant entered into and is bound by the contract on which the suit is based, ■the petition is fatally defective; and the demurrer should have been sustained.

2. An argument more vehemently presented, however, is directed to the proposition that plaintiff did not sufficiently allege performance on his part as a "condition of his right to recover back the advance premium paid. The promise to return the money was conditional. Plaintiff was therefore required, in stating a cause of action, to allege that he performed all of the conditions precedent to his right to a recovery. Livesey v. Omaha Hotel Co., 5 Neb. 50; Estabrook v. Omaha Hotel Co., 5 Neb. 76; Husenetter v. Gulllkson, 55 Neb. 32; Burwell & Ord Irrigation & Power Co. v. Wilson, 57 Neb. 396. In this respect an allegation that plaintiff duly performed all of. such conditions on his part would have been sufficient under the code, which declares: “In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part.” Code, sec. 128. Plaintiff, however, did not see fit to avail himself of this liberal statutory provision. Neither did he comply with the common law rule that the pleader must show specifically the time, place and manner of performance. Bliss, Code Pleading (2d ed.) sec. 301. The stipulations relating to the return of the premium and requiring plaintiff to submit to the examination are: “Policy to date at issue, providing said application is approved by said company; otherwise said payment is to be returned to said applicant. It is hereby agreed and understood that a refusal, after being written, on the part of the applicant to submit to a medical examination, shall forfeit the payment herein.” The examination contemplated by the contract was, of course, the requisite medical examination required by all reputable life insurance companies before assuming a risk. On the face of the contract the assurer was not limited to a single examination by the physician first designated, like the one pleaded. The report of the examiner may have omitted some fact vital to the assuming of the hazard. Symptoms requiring an examination by a specialist may have been reported to defendant as a result of the examination pleaded. Plaintiff’s right to the policy for which he stipulated depended upon an examination commensurate with the risk to be assumed. In the very nature of the policy for which the advance premium was paid, a single examination, if incomplete or unsatisfactory, could never have been within the contemplation of the parties. Safe underwriting forbids such a construction of the contract. For anything appearing in the allegations relating to performance on the part of plaintiff, his own capricious refusal to submit to further examination may be the sole cause óf defendant’s failure to issue the policy.

When the entire pleading is considered in connection with the contract, the allegation that “thereupon the plaintiff did submit to a medical examination by said physician, who did make a medical examination of plaintiff in writing” amounts to no more than a conclusion of law, which must be disregarded in testing the petition. Kruse v. Johnson, 87 Neb. 694. Such a conclusion is not admitted by the demurrer. Markey v. School District, 58 Neb. 479. Not having alleged performance in the general language authorized by statute, plaintiff was required to- state specifically the facts showing that he complied with the conditions of his contract. On this subject the supreme court of Indiana said: “If a party does not make the general allegation authorized by the statute, but undertakes to make a specific allegation of performance, he must make it with the particularity and strictness required by the rules of the common law.” Home Ins. Co. v. Duke, 43 Ind. 418.

Under any proper rule of pleading, performance on the part of plaintiff is not sufficiently alleged. On this, ground also the demurrer should have been sustained. The judgment is therefore reversed and the cause remanded for further proceedings.

Reversed.