Butler v. Chamberlain

ALBERT, C. This case is now before the court for the second time The former opinion is published under the title of Chamberlain v. Butler, 61 Nebr., 730, where a complete statement of facts as to the nature of the case and the stipulation hereinafter mentioned may be found. From the record before us it appears that the stipulation in question was made in open court, at the first trial of the case below, after the plaintiff had made an unsuccessful attempt to show by parol testimony the nature of the assignment of the policy by the plaintiff’s husband to the defendant. After such stipulation was made, the case was submitted to the court on a question of law, namely, whether one may lawfully insure his own life and afterwards assign the policy to another, having no insurable interest, if done in good faith and not by way of cover for a wager policy. The district court answered the question in the negative. As shown by the case above referred to, this court, passing on the same question, reversed the judgment of the district court, and remanded the cause for. further proceedings. After it had been remanded to the district court, the plaintiff filed a motion to set aside the' stipulation of facts, set out in the opinion referred to, on the ’following grounds: First, because the stipulation was contrary to the facts; second, because it was made by mistake of her attorneys; third, because it was contrary to what plaintiff had informed her attorneys were the facts; fourth, because it was improvidently made under a misapprehension of its legal effect by plaintiff’s attorneys; fifth, because it was made without plaintiff’s knowledge, consent or authority; sixth, because plaintiff lacked legal capacity to enter into such stipulation, £he suit being prosecuted by her in her representative capacity as administratrix; seventh, because the stipulation was prejudicial to the rights of the plaintiff. Among other proofs offered in support of the motion was the affidavit of the plaintiff to the effect that at the time of the formen* trial, she was represented by [178] Messrs. T. Appel get and J. II. Hitchcock, now both deceased; that she delivered all the records and papers which she possessed pertaining in any way to said action to them, and that among such papers was one signed by the defendant, with whose signature she is familial', stating that the insurance policy in controversy was assigned to the defendant as security only, to secure the payment of $75 and such premiums as should be paid by the defendant during the time said policy was left with him as such security; ■that she last saw such paper in the possession of her said counsel; that she does not know where the paper is, and is unable to find it, although she has made diligent search for it; that said search had also been made among the papers of her said counsel without success. She further deposes that she did not in any way authorize her attorneys to enter into the said stipulation, and that she knew nothing of it until the same was explained to her by her present attorneys, after this cause had been heard and decided by this court; that she knew, at all times, that said policy was held by the defendant simply as security, and that he never held it as actual owner. She further deposes that the policy was assigned to the defendant by her husband for other amounts than $75, as she has discovered since filing her original petition in this cause. The affidavit stands uncontradicted. The court overruled the motion. A trial was then had, and the plaintiff offered to show substantially the same state of facts covered by her affidavit. The offer was objected to, and the objection sustained on the ground that the evidence offered was inconsistent with said stipulation. The court found in favor of the defendant and gave judgment accordingly. The plaintiff brings error. The only question involved at present is whether the court erred in its refusal to set aside the stipulation as to the facts, and to permit the plaintiff to show a state of facts inconsistent therewith. It will be seen from the statement in the former opinion, that plaintiff’s petition was framed on the theory that the assignment of the policy to the de [179] fendant was by way of security for a debt; the answer, on the theory that the assignment was absolute. By the stipulation it was admitted that the assignment was absolute, thus raising the question of law hereinbefore stated. Had the plaintiff, instead of entering into such stipulation, filed a reply admitting the same state of facts, would it not have raised the same issue of law as that presented by the pleadings and the stipulation? If so, when the case was remanded, would she have been irrevocably bound by the admissions in the reply, or should she have been permitted to amend? Again, suppose that on the first trial the defendant’s theory, that the assignment was absolute, had been fully sustained by evidence given in the ordinary way, and the plaintiff had offered no evidence to the contrary, undoubtedly the same issue of law would have been raised as was raised. • On the second trial, would she have been conclusively bound by the evidence given on the former trial? It is clear to us that had the issue of law presented by the record on the former hearing been presented by the pleadings or by evidence given in the ordinary way, the plaintiff should not be confined to that issue on a second trial. Were the issue presented by the pleadings, the court, in the exercise of a sound discretion, might have permitted her to amend; were it presented by the pleadings, and evidence offered in the ordinary way, she should have been permitted to offer additional evidence, even though it might be in conflict with that offered in the former trial. We are unable to see how the present case differs in principle from the supposed cases. Therefore it seems to us that the sole question is whether there was an abuse of discretion on the part of the trial court. .We think there was. If plaintiff’s affidavit be true, — and it stands uncontra-dicted, — the stipulation stands in the way of a recovery by her of a substantial sum, justly due her, in her representative capacity. In the light of that affidavit, the stipulation was improvidently made, and should be set aside, since it does not appear that to do so would work any injustice to the defendant. The following cases support this [180] conclusion: Keens v. Robertson, 46 Nebr., 837; Becker v. Lamont, 13 How. Pr. [N. Y.], 23; Ward v. Clay, 23 Pac. Rep. [Cal.], 50; Porter v. Holt, 11 S. W. Rep. [Tex.] 494; Brown v. Cohn, 60 N. W. Rep. [Wis.], 826, 829; Harvey v. Thorpe, 65 Am. Dec. [Ala.], 344, 346. It is recommended that the judgment of the district court be reversed, and the cause remanded for further proceedings according to law. Duffib and Ames, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law. Reversed and remanded.