59 N.W. 112 (Neb. 1894), 5633, Hughes v. Insurance Company of North America

• Docket Nº: 5633
• Citation: 59 N.W. 112, 40 Neb. 626
• Opinion Judge: RAGAN, C.
• Party Name: PATRICK S. HUGHES v. INSURANCE COMPANY OF NORTH AMERICA
• Attorney: H. M. Uttley, for plaintiff in error. Jacob Fawcett and F. M. Sturdevant, contra.
• Case Date: May 15, 1894
• Court: Supreme Court of Nebraska

Page 112

59 N.W. 112 (Neb. 1894)

40 Neb. 626

PATRICK S. HUGHES

v.

INSURANCE COMPANY OF NORTH AMERICA

No. 5633

Supreme Court of Nebraska

May 15, 1894

ERROR from the district court of Holt county. Tried below before BARTOW, J.

AFFIRMED.

H. M. Uttley, for plaintiff in error.

Jacob Fawcett and F. M. Sturdevant, contra.

OPINION

Page 113

[40 Neb. 627] See opinion for authorities upon the questions discussed.

RAGAN, C.

Patrick S. Hughes sued the Insurance Company of North America in the district court on a policy of fire insurance to recover the value of a building destroyed by fire owned by sad Hughes and insured by said insurance company. At the close of the testimony the district court [40 Neb. 628] directed a verdict for the defendant, upon which judgment was rendered, and Hughes brings the case here on error.

The policy sued upon contained this provision: "That the having of other insurance thereon [the property], or any part thereof, valid or invalid, prior or subsequent, not made known to this company and consented to hereon, will render this policy void." The policy sued on was issued on the 19th day of June, 1880, and insured the property of Hughes for $ 800 until the 19th day of June, 1890. On the 4th day of July, 1889, Hughes procured another policy of insurance upon said property from the Phoenix Insurance Company of New York. This policy was also for $ 800 and insured the property for one year. The taking out of this second policy by Hughes was not consented to by the Insurance Company of North America, and not known to it until after the destruction by fire of the property insured in February, 1890. The defense made in the district court to this suit by the insurance company was the procuring on the insured property by Hughes of the second policy of insurance. The evidence establishes without dispute that Hughes procured the second insurance policy at the time and in the manner stated above. Is this violation by Hughes of said clause in the first insurance policy a defense for the insurance company in a suit upon the policy? We think it is. We do not think that Hughes' violation of this provision in the policy rendered the contract void, but simply voidable at the election of the insurance company. The provision is a reasonable one. It is not unconscionable nor illegal, nor is it contrary to public policy. It is a provision inserted in the policy...