
    Elroy S. Munson, Administrator, appellee, v. Provident Mutual Life Insurance Company, appellant.
    Filed April 20, 1934.
    No. 28911.
    
      Peterson & Devoe, for appellant.
    
      Craft, Edgerton & Fraizer, contra.
    
    Heard before Goss, C. J., Rose, Good, Eberly, Day and Paine, JJ., and Messmore, District Judge.
   Paine, J.

This is an action at law upon an old line life insurance policy for $2,000 for the death of the insured, brought after seven years had elapsed from the time he was last seen.

The defendant company admits the issuance upon February 17, 1915, to Albert R. Munson, aged 23, of policy No. 231252, for a yearly premium of $60, to be paid annually for 20 years, the beneficiary being his estate, and said policy to be paid up on February 17, 1935, and to be payable as an endowment on February 17, 1952. Defendant admits the payment of the ninth annual premium, due on February 17, 1923, the next premium being payable February 17, 1924.

It is also alleged by said defendant that on September 12, 1923, Albert R. Munson secured a loan upon said policy in the sum of $325, with 6 per cent, interest, which he used in an automobile trade at Omaha, and that said policy loan was a valid obligation against the policy, together with interest thereon. That upon February 17, 1924, the policy having ceased to be in force because of the nonpayment of the premium due that day, the amount of the loan and interest then due was deducted from the cash value, and the balance of the cash value of said policy was applied to purchase a paid-up participating policy for $180, payable under the same conditions as the original policy. Defendant denies that Albert R. Munson is dead, or that proof of death has been supplied.

For reply the plaintiff denies that the cash value of said policy could lawfully be used to purchase paid-up insurance, and alleges that any attempt so to do was entirely unlawful and unauthorized, because the said Albert R. Munson, insured, was dead at the time the officers attempted to enter up said purchase of paid-up insurance by notation on the back of the policy at a time when they were holding it as collateral for the loan.

This is a companion case to Munson v. New England Mutual Life Ins. Co., p. 775, post, and a full discussion of the evidence and law will be found in that case. The court entered a judgment in the case at bar, finding that Albert R. Munson came to his death prior to October 15, 1923, and that the principal and interest on said loan of $325 amounted to $512.97 on the date of the decree, April 3, 1933; that the plaintiff was entitled to judgment upon the face of the policy of $2,000, with 7 per cent, interest from February 13, 1932, the date of filing the petition, making a total of $2,159.43, leaving a net amount of the judgment of $1,646.46, With interest, and an attorney’s fee of $200.

Finding no error in the record, the said judgment is affirmed, ■ together with an attorney’s fee in this court of $100.

Affirmed.

Day, J.,

dissenting.

In so far as applicable to this case, I entertain the same view expressed in Munson v. New England Mutual Life Ins. Co., p. 775, post.  