
    JULIA KROGH, Appellant, v. GREAT WEST LIFE ASSURANCE COMPANY, a Corporation, Respondent.
    (214 N. W. 897.)
    Trial — offer of proof — must be comprehensive.
    1. When a party to an action is precluded by the rulings of the court from eliciting desired testimony from .witnesses and makes an offer of proof, such offer of proof must be comprehensive enough to cover all of the issues in the case not admitted by the answer or supported by the testimony of a witness.
    Trial — objection to whole offer of proof may be sustained.
    2. Where such offer of proof contains competent and incompetent testimony the court is not required to separate the competent from the incompetent, but may sustain an objection to the whole of the offer because of the incompetent testimony which it contains.
    Trial — offer of proof in this case did not cover all allegations in complaint.
    3. The record examined and it is found that the offer of proof made in this case did not cover all of the allegations set forth in the complaint which were not admitted by the answer or supported by testimony of witnesses, and the motion of the defendant for a dismissal of the action was properly sustained.
    Trial, 38 Cyc. p. 1334 n. 13 New; p. 1335 n. 37; p. 1336 n. 38.
    Opinion filed May 7, 1927.
    Rehearing denied August 23, 1927.
    Appeal from tbe District Court of Griggs County, Cole, J.
    
    Affirmed.
    
      Sad & Duffy, for appellant.
    
      Murphy & Toner, for respondent.
   Burr, J.

Tbe plaintiff brings action against tbe defendant on a complaint setting forth three causes of action. For her first cause of action tbe plaintiff, after stating tbe corporate existence of tbe defendant, alleges, among other things; that on tbe 25th day of February 1926, Sigurd A. Krogh applied to defendant for a $2,000 twenty-year endowment policy, a copy of tbe application being attached to and made a part of tbe complaint as exhibit A; that on tbe 19th day of March, 1926, be was examined by tbe medical examiner for tbe defendant; that she is the beneficiary named in the application; that at the time of signing tbe application for insurance tbe said Krogh paid to the defendant tbe full amount of tbe first premium and tbe defendant issued him a receipt therefor; that said receipt contained tbe following' provision:

“It is a further term and condition hereof that, if at tbe time of making this application, cash payment in full of tbe first premium is made by me, and if tbe company at its bead office is satisfied as to my insurability at tbe date of my medical examination, or personal declaration in lieu of medical examination, regard being bad among other things, to tbe plan, tbe premium, and tbe amount of insurance applied for, then insurance, subject to tbe provisions contained in tbe company’s regular form of policy therefor, shall be effective as from tbe date of such medical examination or personal declaration in lieu of medical examination, for an amount which is not to include any portion of tbe total insurance applied for which tbe company would in its practice ordinarily reinsure. If tbe company is not satisfied as to my insurability as hereinbefore mentioned, tbe sum actually paid at tbe time of making this application shall be returned. If the company is satisfied as aforesaid, a policy is to be issued forthwith.”

That on or about April 1, 1926, tbe defendant issued a policy insuring tbe life of tbe said Krogh in tbe sum of $2,000 pursuant to bis application and forwarded said policy to its state agent at Fargo, N. F.; that tbe said state agent, after tbe receipt of said policy, upon learning that Krogh was ill, failed and refused to deliver tbe policy and returned tbe same to tbe bead office of tbe defendant; that tbe said Krogh died on or about tbe 9th day of April, 1926, due proof of death was furnished tbe defendant and demand made for tbe payment of tbe amount due on tbe policy, but tbe defendant has failed and refused to pay tbe same or any part thereof.

As a second cause of action, after realleging facts regarding tbe application and examination, tbe plaintiff says that at tbe time of signing tbe application for insurance tbe said Krogh paid to tbe defendant tbe sum of $59.25 and received a receipt containing tbe provision herein-before quoted; that prior to this be held two life insurance policies with tbe said company one of which bad been “rated up” five years and that at tbe time be made this application it was not known at what amount a policy would be rated and so that application was made in tbe form specified in tbe complaint and tbe amount of premium that was demanded by the soliciting agent was paid; that on the receipt of this application the company issued the policy in the sum of $2,000 and in said policy the defendant was “rated up” seven years; that the policy was forwarded to the state agent, but upon learning of the sickness of Krogh, the agent returned the policy and mailed a check for $56.10 to Krogh; that the reason' the policy was “rated up” was because Krogh was suffering from rheumatism but that the cause of death of said Krogh was influenza; the proof of death was furnished and demand made for the payment as alleged before.

In the third'cause of action after setting forth previous allegations plaintiff alleges that the defendant failed and refused to deliver the policy either to the insured or to the beneficiary though ““offered the full premium on the policy rated up seven years.” And so the plaintiff demands judgment against the defendant for $2,000 and costs.

The application referred to in the complaint is too lengthy to be set forth in full; but the provision quoted from the receipt is also one of the conditions of the application. This application calls for a twenty-year endowment accident benefit insurance policy with a semi-annual premium of $54.80 for the main benefit, and $1.30 for accident, or a total semi-annual payment of $56.10, .and the insured gives his age as forty-three years. The application was taken by one R. E.. Hatcher as soliciting agent and contains the statement that the insured party “paid to R. E. Hatcher $56.10 to cover the first premium on the policy applied for, subject to the terms and conditions contained herein and those indorsed on the receipt bearing the date and number of this application.” The said application also contained the declaration and agreement “that all statements, representations and answers in the application, including those made or to be made to the medical examiner, or •in the personal declaration of the applicant in lieu of medical examination, as part of this application, are a consideration for and a basis of the contract for insurance made between me and the said company, and whether written or printed, are declared to be true, full and complete; that no other statement, representation or information shall be binding or affect the rights of the company.”

The defendant in its answer admits its corporate capacity; the application for the insurance as set forth by the plaintiff in her complaint; the medical examination of the insured; that the plaintiff is the beneficiary named; denies the payment of the first premium, but admits the issuing of the receipt containing the conditions set forth in the complaint that the insured “paid the soliciting agent for the defendant a sum of money which was the correct form of premium if the deceased was found to be a normal risk and his application, could be accepted •on the terms which it was made; ” denied issuing a policy insuring the life of the said Krogh pursuant to the application and denied forwarding any such policy to its state agents; the defendant admits no policy was delivered to the insured and puts the burden of proof as to the time of death on the insured; admitting that an alleged proof of death was furnished. Defendant also admits that no part of such insurance policy was paid.

In answer to the second cause of action defendant admits the insured paid its agent $59.25 but alleges $3.10 was returned to him and only $56.10 retained and denies that the form of the receipt set out is the true and correct form; it admits that the insured had two other life insurance policies, but denies there was any agreement to “rate up” the insured; defendant also denies that it issued any policy to the insured wherein he was “rated up seven years” and denies that any “policy of insurance was ever issued on or pursuant to the application of insurance they received or otherwise.” Defendant admits the return of a check for $56.10 to the insured; that this was done at a time when the insured was reported to be ill. Defendant denies the “cause of death stated and admits it was notified of the death of the insured, and that a demand was made for the payment of an alleged policy of $2,000 but says there was no such policy in existence and the defendant paid nothing pursuant to such demand.”

Answering the third cause of action the plaintiff admits that it “did not offer to deliver any $2,000 insurance policy as described in the ■complaint to Krogh deceased, to the plaintiff herein, or to anyone else.”

The defendant then sets forth its affirmative defense which it is unnecessary to state owing to the situation which developed in the •case. The case came on for trial and a jury was impaneled. Plaintiff ■offered some testimony and called a witness for cross-examination under the statute. The defendant, over the objection of the plaintiff, was permitted to examine this witness and introduce an exhibit. A serious difference of opinion arising between counsel for the parties, and between the counsel for the plaintiff and the court, regarding the theory of. the case, issues involved, and the relevancy of the testimony offered, it became apparent the law of the case as announced by the court precluded plaintiff proceeding further and so plaintiff made the offer of proof hereinafter set forth. Objection was made to the said offer, though counsel for defendant admitted “there is probably forty-five per cent of the offers that he made that I have no objection to at all; I will admit them, but I don’t want him to be deprived of the things that he wants to prove. The fact that Sigurd A. Krogh made an application is admitted; that he paid the annual or the standard premium on that application is admitted; that the premium was returned in April, is admitted; the fact that this policy was sent down has been admitted; the fact that it never was delivered is admitted; and the fact that Doctor Arneson examined this man and sent in a medical examination form — he may not have sent it directly to Winnipeg, but it eventually got there, — is admitted, but as far as counsel going to prove by Doctor Arneson some conversation that the deceased had with him, when this examination in writing was being taken, we will object to his offer of proof on that on the ground that it is wholly incompetent and there is no foundation laid so far as this defendant is concerned; no. authority shown in Arenson to have any conversation with the applicant whatever, or any authority to do anything that would bind the company, and so far as his offer to prove that Mr. Hatcher made some admissions in June of 1926, two months after this whole transaction was closed, without having proof of the agency, or the authority of Hatcher, and even after he had proved it, without it appearing that this conversation was a part of the res gestae when they claim this contract was made. We object to that as wholly immaterial, and •incompetent.”* The court said “the objections stated by counsel would be sustained. This for the purpose of understanding and clarifying the record, and the court has stated what its ruling would be heretofore.”

At this point defendant was permitted to examine the witness called for cross-examination under the statute, and this excerpt from the record shows the disposition of the case.

“Mr. Toner: I understand that the plaintiff is willing to stand on bis offer of proof.”
Tbe court: “Are you willing to stand on your offer of proof and my ruling ? ”
Mr. Sad: “As closing tbis case ? ”
Mr. Toner: “Tbe proposition being that notwithstanding you proved what you have offered, it wouldn’t do you any good anyway.”
Tbe court: “That is tbe ruling of tbe court.”
Mr. Duffy (for plaintiff) : “If that is tbe ruling of tbe court there would be no use in going further.”
Mr. Toner: “I am asking you that, if you want to rest on your offer or want to go ahead and examine witnesses. I want to make a motion to dismiss on tbe record.”
Tbe court: “Tbe court rules tbis, that while much of tbe offer, probably tbe greater part of it would be excluded on objection by tbe defendant, that even though it was allowed by tbe court, that upon motion of tbe defendant to strike some or tbe greater part of it out and dismiss tbe action, tbe court would have to grant such motion, as it is tbe opinion of tbe court that tbe proposed proof would not be of such a character as to establish a cause of action in tbe plaintiff. I think that covers tbe ground, and let tbe record show, to all of tbe rulings adverse to tbe plaintiff, an exception follows:”
Mr. Toner: “Tbe defendant at tbis time moves the court to dismiss tbe above entitled action for tbe reason and upon tbe ground among others that no contract of insurance or any other contract has been established between tbe deceased and tbe defendant insurance company, or tbe plaintiff and tbe insurance company; that the plaintiff has failed by evidence offered as well as by bis proof, even if be made it, to establish a cause on contract against tbe defendant in favor of tbe plaintiff.”
Mr. Sad: “That motion is objected to by the plaintiff.” ’
Tbe court: “The objection is overruled and tbe motion is granted.”

Tbe plaintiff appeals from tbe order of tbe court dismissing tbe action, and sets forth II specifications of error.

If tbe allegations of tbe complaint which are admitted by tbe answer, together with other admissions in tbe answer, the testimony already received by tbe court, and the competent testimony set forth in tbe offer of proof do not entitle the plaintiff to a judgment against the defendant then the action of the court was correct in dismissing this •case.

It will be observed from the quotations hereinbefore set forth that the defendant did not point out any particular defect but objection to the offer of proof as a whole. No objections were specifically made to certain of the offers, but an examination of the record shows that the •court and the counsel were not so much concerned in specifying the particular grounds as they were in considering the general trend and nature of the whole offer. The offer was shut out on the theory that •even if all of it were proved there would be no case.

The general ride in regard to offers of proof in such cases may be considered thus: If testimony is offered, part admissible and part inadmissible, the court may overrule objections thereto unless the defects are pointed out specifically; for a general objection does not avail where part of the testimony offered is admissible. Hilleboe v. Warner, 17 N. D. 594, 599, 118 N. W. 1047; Everson v. Casualty Co. of America, 208 Mass. 214, 94 N. E. 460.

Where the offer includes admissible and inadmissible testimony, wherein “competent and incompetent are blended,” and a general objection is made, the court may, if it sees fit, reject all offered without having the defects pointed out specifically. The court is not required to separate them. This is the duty of the proponent. First Nat. Bank v. North, 2 S. D. 480, 51 N. W. 98; Farleigh v. Kelly, 28 Mont. 421, 63 L.R.A. 319, 72 Pac. 760; Over v. Schiffling, 102 Ind. 191, 26 N. E. 91.

Where the court sustains a general objection to an offer of testimony, some of which is incompetent and inadmissible, the proponent has no complaint for the objection is good in part. Rosenberg v. Sheahan, 148 Wis. 92, 133 N. W. 645; Adams v. Southern R. Co. 166 Ala. 449, 51 So. 991.

This brings us to an examination of what the plaintiff was required to prove in order to make out a cause of action; what was admitted; what was already proved by the witness who testified; and what the plaintiff offered to prove. In considering this we omit defendant’s defenses and theory of the case.

The synopses of the complaint and of the answer show what the plaintiff was required to prove. But one witness was sworn for the plaintiff • — R. A. Hatcher — and his testimony admitted is to the effect that he lives in Fargo, his occupation is life insurance, he secured the application, exhibit 1, from Sigurd Alfred Krogh for life insurance policy with Great West Life and that it was his signature on the statement; that he got the check, exhibit 2, in payment of the premium on exhibit 1; the policy, exhibit 5, was received by him at his office about April 6, 1926; he kept no ledger account of policies but his office got a record card from the head office showing all of the conditions, premiums, rates, and everything else; that was his record; Mr. Settevik was in the office but he did not know the time; did not send the policy to Krogh “because there was an additional application with it that provided for an additional premium, and also in the additional application was a statement for him to sign that he was in good health. I had it on good reliable information at the time that he was sick.” He also testified that the correct premium on the application sent in was $56.10. This was all of the testimony furnished by any witness. The parties stipulated that exhibit 5, the policy issued, “was written, signed at the head office of the Great West Life Assurance Company, at Winnipeg, Canada, and mailed to and received by E. E. Hatcher, Fargo, N. D., in full on April Y, 1926.” During the progress of the trial “defendant admitted on the record that proof of death was made; ” that Mr. Krogh died April 9, 1926, and that no part of the policy had been paid.

To supplement the admissions in the answer, the testimony, the stipulation, and the admissions on the record the plaintiff made his offer of proof consisting of twelve paragraphs as follows:

“1. That application was made by Sigurd Alfred Krogh, and a check given therefor for $59,25, and that Mr. Krogh took a medical examination at which medical examination Doctor Arncson informed him that he was a substandard risk, and that Mr. Krogh went on with the examination and such examination was sent or forwarded to the company.
“2. That Mr. Krogh took sick the first part of April and was on the point of death on the 8th day of April, 1926.
“3. We also want to prove that Mr. Hatcher forwarded to Mr. Krogh the check, the check leaving Fargo on the 8th day of April, 1926, and that such check was not cashed until after the death of Mr. Krogh, and that Mr. Krogh never received the check in question.
“4. We want to prove, that at this time Mr. Hatcher told Mr. Ed. Settevik, on or about the 19th day of June, that he was going to send the policy ahead to Mr. Krogh, but that he found out from one Anderson, an Agent of the Great West Life Assurance Company that Mr. Krogh was sick, and he therefore wired the company for instructions, and they told him to return the policy.
“5. We want to prove that Mr. Hatcher told Mr. Settevik that he gave Mr. Krogh a binding receipt, which entitled him to insurance from the date of the medical examination, if his application was accepted.
“6. We want to make proof that Mr. Hatcher said to Mr. Krogh that he should take a twenty year endowment, for the reason that he would not be rated up so much under the twenty year endowment as the ordinary life, that Mr. Krogh had mentioned and spoken of.
“Y. We want to show that. Mr. Settevik was down to Fargo in the latter part of June and the girls in the office of Hatcher Brothers, showed him, or gave him the records that the policy had been received there the Jth day of April, and was marked for their records.
“8. We further want to prove that Mr. Hatcher later on told Mr. Settevik that he would not deliver the policy to him because he had not signed an agreement . . .
“9. We want to further prove that Mrs. Krogh is the beneficiary in this policy, and that she did.not cash the check returned on account of this policy.
“10. We further want to show that the original application for this insurance is attached to plaintiff’s exhibit 5, and that the medical examination or parts of it is attached to the plaintiff’s exhibit 5, being the insurance policy written and forwarded to the office of Hatcher Brothers of Fargo.
“11. Further we wish to prove that no part of the said policy has been paid.
“12. We further want to prove that by the acts and declarations of Mr. Hatcher, and the medical examination, that he is an agent of the Great West Ufe Assurance Company, for the purpose of making the medical examination; that he intended, and the agreement between Mr. Sigurd A. Krogb. and tbe Great West Life Assurance Company was to tbe effect, that Mr. Krogb would be given a policy — a rated up policy, tbe amount of premium wbicb was unknown to Mr. Krogb at tbe time be made tbe application and that from tbe acts and circumstances, we wish to prove that Mr. Krogb would bave paid tbe additional premium on sucb rated up policy.”

Tbis is tbe offer of proof to wbicb tbe excerpt from tbe record refers— 'tbe excerpt showing tbe objections and tbe rulings of tbe court. It is apparent that tbe objections were well taken. Clearly a goodly part of tbis offer was inadmissible being incompetent; sucb as tbe offer in paragraphs 5 and 1; and being all in one offer tbe court bad tbe right- to sustain the objection. Plaintiff made no attempt to separate tbe competent from tbe incompetent. Plaintiff bad attempted to prove by Mr. Hatcher that be was the agent for tbe life insurance company and also to prove by Mr. Hatcher statements that be bad made to tbe deceased. Por example, Mr. Hatcher was asked, “Who do you represent?” and the objection was made that it was “incompetent and no foundation laid, and an attempt to prove agency by tbe admissions or statements of tbe agent.” Also to prove by Mr. Hatcher that tbe deceased bad other policies from tbe defendant through tbe Hatcher office. And a similar objection was made to tbe effect that “in order to show by tbe admission of an agent, any fact binding on bis principal, be must first show tbe agency, and secondly be must show tbe scope of bis authority.” By these objections and tbe rulings of tbe court the plaintiff was prevented from eliciting answers to sucb questions. Of course tbe ■agent was a competent witness to state for whom be was working and tbe terms of bis employment and tbe scope of bis authority, and therefore in bis offer of proof it is quite possible that paragraph No. 12 is sufficiently definite for tbis feature. But, irrespective of tbe objection ■directed to tbe competency of part of tbe offer it is clear that if tbe whole of tbe offer could bave been proved it was not sufficient to establish a cause of action for tbe plaintiff. Exhibit 5 was not tbe policy .applied for. It bad different terms. Tbe application itself provided that tbe company if not satisfied of bis insurability was to return the premium paid. Tbis clearly gave tbe company tbe right, to reject tbe application and tbe application itself contained all of tbe terms and conditions of tbe contract that was tendered by tbe insured. There is no proof furnished or offered that the company accepted the application sent in. It is clear the company did not, for it returned the premium. Exhibit 5 was an offer on the part of the defendant to insure the plaintiff on a different basis entirely; but this offer of the defendant was not presented to the plaintiff owing to his illness and death.

We are satisfied the court was right in holding that no cause of action was proved or offered to be proved and therefore the judgment of the lower court is affirmed.

Birdzelx, Oh. J., and Burke, Christianson, and Nuessle, JJ., concur.  