Am. Fire Ins. Co. of Phila. v. LaNdfare

• Decision Date: 03 November 1898
• Citation: 56 Neb. 482,76 N.W. 1068
• Parties: AMERICAN FIRE INS. CO. OF PHILADELPHIA v. LANDFARE ET AL.
• Court: Nebraska Supreme Court

56 Neb. 482

76 N.W. 1068

AMERICAN FIRE INS. CO. OF PHILADELPHIA

v.LANDFARE ET AL.

Supreme Court of Nebraska.

Nov. 3, 1898.

Syllabus by the Court.

1. A petition, when assailed for the first time after judgment, will be sustained, if the averments therein constitute a cause of action, even though informally or indefinitely stated.

2. Policy of fire insurance is prima facie an admission by the insurer of the title or ownership of the insured to the property covered by the policy.

3. The introduction in evidence of a recorded deed, by the grantee mentioned therein, in support of his claim of title to the property, is sufficient to establish his acceptance of such deed.

4. One is not bound to know at his peril all that is contained in a newspaper to which he is a subscriber. He is chargeable with knowledge of all matters contained in such publication which he has seen or read, as well as all matters of advertisements published in such newspaper in obedience to some statute or legal order, and which the law has made conclusive of his rights, whether he ever knew it or not.

5. Proof of the publication in a newspaper, as an item of news, of the giving of a mortgage upon certain real estate, is alone insufficient to establish that a particular subscriber had actual knowledge of the existence of such mortgage.

6. Error cannot be predicated upon the admission of evidence to establish a particular issue, where such issue is subsequently withdrawn from the consideration of the jury by the court in its instructions.

7. A party cannot complain of the giving of an instruction in harmony with one which he requested.

8. One who tenders an instruction which is given, which assumes the existence of evidence to establish an issuable fact in the case, cannot afterwards be heard to assert that there was no evidence received tending to prove such fact.

9. A general exception to instructions is insufficient. Where a charge consists of several paragraphs, there must be an exception to each instruction claimed to be erroneous.

10. An assignment in a motion for a new trial, that a group of instructions is erroneous, is insufficient if one of them is without error, and was properly given.

11. Error in entering a judgment for a stated sum upon an insurance policy in favor of two joint plaintiffs, the insured and the owner of a mortgage on the insured premises, where the latter alone was entitled to recover the full amount of the loss, is harmless, since it is immaterial to the defendant whether it pays the sum to one or both; and the payment of the judgment would be a complete bar to any subsequent action brought by either plaintiff upon the same policy.

12. It is within the discretion of the trial court to submit or withhold questions for special findings of the jury, and its ruling in that regard will not be molested unless an abuse of discretion clearly appears.

13. A motion in the lower court to retax costs is unnecessary to review a judgment awarding an attorney's fee in an action on an insurance policy.

14. On rendering judgment on a policy of insurance on real property, a reasonable attorney's fee may be allowed plaintiff, and taxed as costs, without regard to the date the risk was written.

Error to district court, Douglas county; Hopewell, Judge.

Action by Harvey Landfare and John Wendell against the American Fire Insurance Company of Philadelphia. There was a judgment for plaintiffs, and defendant brings error. Affirmed.E. Wakeley and A. C. Wakeley, for plaintiff in error.

Hall & McCulloch, for defendants in error.

NORVAL, J.

On November 26, 1888, the American Fire Insurance Company of Philadelphia, through its Omaha agents, Murphy & Lovett, issued its policy of insurance whereby, in consideration of the sum of $52.50, paid as premiums, it insured Harvey Landfare against loss or damage by fire for the period of one year from that time in the sum of $1,750 on his two-story building, used mainly for the storage of cutters, carts, and carriages, located in block 15 in Albright's Choice, an addition to South Omaha. The policy contained this clause: “Loss, if any, first payable to John Wendell as his interest may appear.” On May 3, 1889, the insured building was destroyed by fire, and March 5th, following, this action was instituted on the policy by Landfare and Wendell, who jointly obtained a verdict and judgment for the face of the policy, with interest thereon, and attorney's fee of $200. The defendant has brought the record of the proceedings to this court, alleging numerous errors.

It is argued in the brief of the company that Landfare had no insurable interest in the property covered by the policy, that there is no averment in the petition of any ownership in him, and there was no proof adduced of his insurable interest upon the trial. The petition avers the execution and delivery of the policy in suit by defendant, whereby “it agreed to and did insure the said Harvey Landfare to the amount of $1,750, for the term of one year from that date, on his two-story, slate-roof building, known as the ‘Factory Building,’ ” etc. This was a sufficient allegation that the insured premises were owned by the insured when the policy was taken out, especially as no objection was made to the petition until after verdict. A petition, when assailed for the first time after judgment, will be sustained if the facts averred therein constitute a cause of action, although informally and indefinitely stated. Powers v. Powers, 20 Neb. 529, 31 N. W. 1.

To the objection that there is no proof that Landfare had any interest or title to the property insured, a sufficient answer is that the policy itself, the issuance whereof is admitted in the answer, is sufficient prima facie to show the ownership or title of Landfare to the property. Insurance Co. v. Scheidle, 18 Neb. 495, 25 N. W. 620;Insurance Co. v. Peterson, 47 Neb. 747, 66 N. W. 847. But Landfare's insurable interest was established by proofs aside from the prima facie case made out by the policy. The defendant concedes in its briefs that the Omaha Carriage & Sleigh Company formerly owned and occupied the insured premises. It appears that on August 23, 1888, said company, through its president and secretary, executed a deed to the property to the plaintiff Landfare, subject to certain mortgages, which deed was placed upon record September 1, 1888, and before the policy was issued. Who caused the instrument to be recorded is not shown, and it is argued that a recorded deed is prima facie evidence alone of a delivery, and not of the acceptance thereof by the grantee. Whether the rule is thus correctly stated, we need not now determine, since Landfare introduced in evidence on the trial the deed, or rather the record thereof, which was sufficient proof of his acceptance of the conveyance.

Complaint is made of the admission as evidence of the following article in the Omaha Evening World of August 25, 1888:

“Last night's World contained a statement that the Omaha Carriage & Sleigh Company had placed mortgages on its property. The following mortgages were given yesterday:

+--------------------------------------------------------+
                ¦First chattel mortgage, Churchill Parker       ¦$10,641 ¦
                +-----------------------------------------------+--------¦
                ¦Second chattel mortgage, Star Cutter Co.       ¦6,554   ¦
                +-----------------------------------------------+--------¦
                ¦Third chattel mortgage, N. B. Van Slyck        ¦1,000   ¦
                +-----------------------------------------------+--------¦
                ¦Fourth chattel mortgage, Douglas County Bank   ¦1,569   ¦
                +-----------------------------------------------+--------¦
                ¦Fifth real-estate mortgage, Star Cutter Co.    ¦6,795   ¦
                +-----------------------------------------------+--------¦
                ¦Sixth real-estate mortgage, Mansfield Buggy Co.¦2,348   ¦
                +-----------------------------------------------+--------¦
                ¦Total                                          ¦$28,907”¦
                +--------------------------------------------------------+
                

The insured premises were formerly owned by the Omaha Carriage & Sleigh Company, and it had executed a mortgage thereon in favor of the Star Cutter Company, and the same was a lien upon the property at the time the policy in suit was issued. It was claimed by the insurance company that it had no knowledge of the existence of said real-estate mortgage, and that the lien of the mortgage rendered the policy void. The newspaper article was read in evidence for the purpose of showing that the agents of the company issuing the policy had actual knowledge that the insured property was incumbered by mortgage to the Star Cutter Company. The article was not one which the law required to be inserted in a newspaper, and the publication thereof was not alone sufficient to establish that the agents who issued the policy, or any officer of the insurance company, possessed knowledge of the lien of the mortgage to the Star Cutter Company. The precise principle was decided in Bank v. O. S. Kelley Co., 47 Neb. 678, 66 N. W. 619. In that case the question involved was whether the bank had knowledge of the existence of a chattel mortgage held by the defendant. Ragan, C., speaking for the court, observed: “The only evidence in the record which tends to show--if that does--that the bank officers had any knowledge or notice of the mortgage held by the Kelley Company, is this: The bank was a subscriber for a ‘bulletin’ issued by some one in York county, which bulletin gave the names of parties making mortgages filed in York county, and a description of the mortgaged property. It was shown that a bulletin which came to the bank soon after July 23, 1891, recited that John and Peter Peters had executed a chattel mortgage to the Kelley Company on a threshing machine, such as the one in controversy, and that this mortgage had been filed in the clerk's office of York county; but there is no evidence in the record that any officer or agent of the bank ever read this bulletin. If...