Aetna Ins. Co. v. Simmons

• Decision Date: 02 December 1896
• Parties: AETNA INS. CO. v. SIMMONS.
• Court: Nebraska Supreme Court

49 Neb. 811

69 N.W. 125

AETNA INS. CO.

v.SIMMONS.

Supreme Court of Nebraska.

Dec. 2, 1896.

Syllabus by the Court.

1. Where it is assigned for error that the district court gave or refused to give certain specified instructions, if an examination discloses that the court did not err in giving or refusing to give all of the instructions named, the assignment will be overruled.

2. An assignment that a verdict is “contrary to the instructions of the court” will be overruled if it appears that the verdict is in accordance with any one of the instructions.

3. The rule of practice of this court requires a litigant who brings a judgment here for review on error to specifically state in his petition in error of what action or omission of the court he complains, and in his brief,--in addition to a concise statement of the facts of the case,--under appropriate headings, to allege what particular thing the district court did, or refused to do, which it is claimed was error, collating, under such headings, the arguments, and citing the authorities, which he deems sustain his contention.

4. Only the actions or omissions of a district court which are so specifically assigned, both in the petition in error and in the brief filed here, can be considered.

5. Every judgment brought to this court for review comes surrounded with the presumption of correctness; and this court will not search a record for the purpose of ascertaining if it contains error. The burden is upon the party complaining of the action of the district court to specifically point out what is complained of, and show that it was probably prejudicially erroneous.

6. In a suit upon an insurance policy to recover the value of insured real estate wholly destroyed by fire, the sum for which said property is insured is conclusive evidence of its value. Comp. St. c. 43, § 43.

7. Insurance was written upon personal property to the amount of $1,150. In a suit upon the policy, the jury returned a general verdict in favor of the assured for $800, and a special finding that the value of the property was $1,600. Judgment was rendered on the general verdict. Held, that the inconsistency between the general and special verdicts was not one of which the insurer could complain.

8. An insurance policy contained a provision that, in case of a fire, the insured, within 60 days thereafter, should furnish to the insurer proofs of loss. After being notified of the loss, the insurer's adjuster went to the farm of the assured, and examined and inquired into the loss, cause of the fire, etc. The assured submitted to the adjuster a written memorandum of the items of property destroyed, and their value. Some negotiations took place between the adjuster and the assured, which resulted in the adjuster offering the assured $900 in full settlement of the loss. In a suit upon the policy, the insurer interposed a defense that the policy had been procured by fraud, and was void from its inception. Held: (1) That the conduct of the insurance company after being advised of the loss justified the finding of the jury that it had refused to pay the loss, and waived the furnishing of proofs thereof; (2) that the insurance company waived the proofs of loss required by the policy, by defending the action on the grounds that the policy had never been in force.

9. An insurance company, by denying its liability on the ground of a forfeiture of the policy by reason of a breach of warranty of the insured, waives whatever right it may have had to insist upon arbitration as a means of determining the amount of the loss. Insurance Co. v. Kennedy, 66 N. W. 278, 47 Neb. 138, followed.

10. A fire insurance policy contained the following clause: “The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examinations under oath by any person named by this company, and subscribe the same, and, as often as required, shall produce for examination all books of account, bills,” etc., “at such reasonable place as may be designated by this company or its representative. * * *” A suit upon the policy was defended upon the ground that the insured had refused to submit to an examination under oath. Held: (1) Whether the refusal of the insured to submit to an examination under oath, at the request of the insurer, constituted a defense to the action, not decided; (2) that a fair construction of the clause only required the assured to submit to an examination at such reasonable time and place as might be designated by the company or its representative; (3) that, for such refusal of the insured to constitute a defense to the action, it was incumbent upon the insurance company to fix a time and place, and to designate some person authorized by law to administer oaths before whom such examination could be had; (4) that the time fixed for such an examination must have been within a reasonable date after notice of the fire; the place of examination must have been a reasonably convenient one within the county where the assured resided.

11. An insured made application in writing for insurance on certain buildings and personal property on his farm, in which he valued his dwelling at $700, his barn at $500, his milk house at $100, his household furniture $500, butter and cheese apparatus and stock $600, and hay and grain at $500. The application also contained the following: “Q. State the actual amount paid for the land. A. Sixteen hundred dollars. Q. State terms of sale. A. Cash.” The application also recited: “The said applicant hereby warrants, covenants, and agrees * * * that the foregoing is a full, just, and true exposition of all the facts and circumstances, condition, situation, and value of and title to the property to be insured, and is offered as a basis of the insurance requested, and is made a special warranty, the same as if written on the face of the policy.” The application was made a part of the policy issued, and the latter contained this clause: “This entire policy shall be void if the assured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof.” A suit on the policy was defended on the grounds (a) that the statements of the assured in the application were warranties; (b) that the valuation placed by the assured on the insured property, and his answers that he had paid sixteen hundred dollars cash for his land, were false. Held: (1) That the application and the policy should be construed together; (2) that the statementsand answers made were representations, and not warranties; (3) that, in order for such representations to constitute a defense to the action, it was incumbent upon the insurance company to plead and prove that the statements and answers were made as written in the application; that they were false; that they were false in some particular material to the insurance risk; that the insurance company relied and acted upon such statements.

12. A warranty in insurance law is the assertion by the assured of some fact on the literal truth of which the validity of the policy depends, without regard to the materiality of such fact, or the motive which prompted the assertion.

13. A representation in insurance law is also the assertion by the insured of some fact, but the validity of the policy does not depend upon the literal truth of the assertion.

14. Whether an assertion made by the insured of the existence of a fact is a warranty or representation is a question of law.

15. If a doubt exists as to whether a statement made is a warranty or representation, it will be held a representation.

16. Warranties are not to be created nor extended by construction.

17. In construing a contract, for the purpose of determining whether the statements made therein were intended by the parties thereto to be warranties or representations, the court will take into consideration the situation of the parties, the subject-matter, and the language employed, and will construe a statement made to be a warranty only when it clearly appears that such was the intention of the contracting parties; that the mind of each party consciously intended and consented that such should be the interpretation of his statements.

Error to district court, Dawes county; Kinkaid, Judge.

Action by W. A. Simmons against the Aetna Insurance Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Sylvester G. Williams and G. T. H. Babcock, for plaintiff in error.

C. H. Bane and D. B. Jenckes, for defendant in error.

RAGAN, C.

This is a suit on a fire insurance policy, brought to the district court of Dawes county by W. A. Simmons against the Aetna Insurance Company (hereinafter called the “Insurance Company”). Simmons had a verdict and judgment. The insurance company prosecutes a petition in error.

1. The insurance company, in the motion filed by it for a new trial, assigned, among others, the following grounds: “The verdict is contrary to the instructions given by the court on its own motion. The court erred in refusing to give the instructions asked for by the defendant. The court erred in refusing to give the 3d, 8th, 11th, 13th, 14th, 16th, 17th, 19th, and 21st instructions asked for by defendant. The court erred in giving the 5th, 6th, 7th, 12th, and 16th instructions given of its own motion.” We have examined the instructions given and refused, and ascertained that the district court did not err in giving all the instructions given, nor in refusing to give all the instructions refused; nor is the verdict contrary to all the instructions given by the court on its own motion. We cannot therefore further consider the assignments in the petition in error directed to the action of the court in giving, and refusing to give, certain instructions, nor the assignment that the verdict is contrary to the instructions given by the court upon...