Waits v. Columbia Fire Underwriters Agency of National Fire Ins. Co. of Hartford, Conn.
| Decision Date | 31 May 1935 |
| Docket Number | 29300. |
| Citation | 261 N.W. 170,129 Neb. 207 |
| Parties | WAITS v. COLUMBIA FIRE UNDERWRITERS AGENCY OF NATIONAL FIRE INS. CO. OF HARTFORD, CONN., ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Letter, written by party offering it in evidence, should be excluded upon proper objection by adverse party, when such letter contains self-serving statements and does not tend to support any issue raised by pleadings.
2. Statements by an agent, made subsequent to the close of the transaction, not connected therewith and not specially authorized by the principal, cannot be received in evidence against the latter.
3. Trial court properly refused to direct verdict for defendant where there was substantial evidence tending to sustain plaintiff's cause of action.
Appeal from District Court, McPherson County; Nisley, Judge.
Action by Alva G. Waits against the Columbia Fire Underwriters Agency of the National Fire Insurance Company of Hartford Connecticut, and the National Fire Insurance Company of Hartford, Connecticut. Judgment for plaintiff, and defendants appeal.
Judgment reversed and action dismissed as to the first defendant, and judgment reversed and cause remanded for further proceedings as to the last-named defendant.
Whether tornado policy had been issued and was in force at time property allegedly insured was destroyed by tornado held for jury.
Wells Martin, Lane & Offutt, of Omaha, for appellants.
Hoagland, Carr & Hoagland, of North Platte, for appellee.
Heard before GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and BLACKLEDGE, District Judge.
Plaintiff sued Columbia Fire Underwriters Agency of the National Fire Insurance Company (hereinafter called Columbia company) and National Fire Insurance Company (hereinafter designated National company) on an alleged lost policy of tornado insurance. The National company denied the existence of any such policy of insurance. The Columbia company also denied the existence of the policy and alleged that it was not engaged in writing insurance for itself but only as agent for the National company. A trial of the issues resulted in judgment for plaintiff against both defendants. Defendants have appealed.
There is no evidence in the record that the Columbia company is an insurance company engaged in writing insurance on its own behalf. There is no evidence that any policy of insurance was ever issued to plaintiff by such company or on its own behalf. If any such policy was issued by the Columbia company, it was on behalf of and as agent for the National company. It is clear that there can be no liability so far as the Columbia company is concerned.
It is plaintiff's contention that on or about the 13th of June 1928, a policy of tornado insurance was issued to him by the National company through its soliciting agent in the village of Tryon; that the policy was for $2,000, for a term of five years, and covered plaintiff's barn; that on the 22d of May, 1933, while said policy was in force, plaintiff's home and barn were wholly destroyed by a tornado, and the policy and other papers of plaintiff were lost in that tornadic storm. Plaintiff and his son testified as to receipt of the policy from the soliciting agent either in June or early in July of 1928. Plaintiff testified that he paid the premium on the policy, amounting to $58. Plaintiff's wife also testified as to seeing and examining the policy; that it was placed and kept in a bureau drawer in their residence; that after the tornado no trace of the bureau or any part of it could be found.
A short time after the tornado, plaintiff wrote a letter to the Columbia company, giving information of the tornado, the loss of his barn and of the policy, and containing statements that the agent at Tryon had said their insurance was all right and in force. This letter, over objection of the defendants, was admitted in evidence, it was claimed, for the purpose of showing notification to the company of the loss. There was no issue on notification to the company; there was no issue on proof of loss. The only issue tendered was that no such policy was ever in existence or had ever been written. The letter amounted to a self-serving declaration, was clearly incompetent, and should have been excluded.
During the course of the trial, plaintiff called a number of witnesses who testified, over objection of defendants, to conversations with one Warren, who was the soliciting agent for the National company. These conversations re lated to a time after the tornado and to a period five years after the time plaintiff claimed delivery of the policy by Warren. These conversations related to statements by Warren to the effect that plaintiff was protected by insurance; that the insurance was in force, and that he could recover for his loss. Plaintiff attempts to justify the admission of this evidence on the ground that Warren was the agent of the company and the only person in the vicinity acting for the company; that his acts and declarations were the acts and declarations of the defendants and were, therefore, admissible. He cites and relies upon a number of authorities, which we have carefully examined, and find none of them in point. In some instances the authorities recognize that the declarations of a general agent in the transaction of the principal's business are admissible in evidence against the principal, and that even the declarations of a soliciting agent of an insurance company may be received in evidence against the principal, when he is directly and specially authorized to make such representations.
These cases are not applicable to the situation disclosed by the record. In this case, whatever transaction Mr. Warren had on behalf of the insurance company with the plaintiff was completed and closed either in June or July, 1928. The statements by agent Warren were made subsequent to May 22 1933. There is nothing in the...
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