American Fire Insurance Company of Philadelphia v. Landfare

• Decision Date: 03 November 1898
• Docket Number: 8369
• Citation: 76 N.W. 1068,56 Neb. 482
• Parties: AMERICAN FIRE INSURANCE COMPANY OF PHILADELPHIA v. HARVEY LANDFARE ET AL
• Court: Nebraska Supreme Court

76 N.W. 1068

56 Neb. 482

AMERICAN FIRE INSURANCE COMPANY OF PHILADELPHIA v. HARVEY LANDFARE ET AL

No. 8369

Supreme Court of Nebraska

November 3, 1898

ERROR from the district court of Douglas county. Tried below before HOPEWELL, J. Affirmed.

AFFIRMED.

E Wakeley and A. C. Wakeley, for plaintiff in error:

The introduction in evidence of the newspaper article for the purpose of fixing upon insurer knowledge of liens on the insured property, in absence of testimony that insurer's agents saw the article, was prejudicial error. (King v Paterson & H. R. R. Co., 29 N. J. L. 92; Brundred v Del Hoyo, 20 N. J. L. 328; Fosgate v. Herkimer Mfg. & Hydraulic Co., 9 Barb. [N. Y.] 287; Goetz v. Bank of Kansas City, 119 U.S. 551; Watkins v. Peck, 13 N.H. 373.)

Landfare had no insurable interest in the premises. (Freeman v. Fulton Fire Ins. Co., 38 Barb. [N. Y.] 247; Gilbert v. North American Ins. Co., 23 Wend. [N. Y.] 43; Fonda v. Sage, 46 Barb. [N. Y.] 123; Jackson v. Phipp, 12 Johns. [N. Y.] 418; Maynard v. Maynard, 10 Mass. 458; Samson v. Thornton, 44 Mass. 281; Herbert v. Herbert, Breese [Ill.] 360; Kingsbury v. Burnside, 58 Ill. 310.)

The commencement of foreclosure proceedings vitiated the policy. (Meadows v. Hawkeye Ins. Co., 62 Ia. 387; Brunswick Savings Institution v. Commercial Union Ins. Co., 68 Me. 313; Bishop v. Clay Fire & Marine Ins. Co., 45 Conn. 430; Titus v. Glenns Falls Ins. Co., 81 N.Y. 417; McIntire v. Norwich Fire Ins. Co., 102 Mass. 230.)

Change of possession of insured property invalidated the policy. (Wenzel v. Commercial Ins. Co., 67 Cal. 438; Carey v. German-American Ins. Co., 54 N.W. 18 [Wis.]; Burr v. German Ins. Co., 54 N.W. 22 [Wis.].)

Plaintiffs were not entitled to a joint judgment. (Brent v. Tinebaugh, 12 B. Mon. [Ky.] 87; Bell v. Allen, 53 Ala. 125; Gerry v. Gerry, 11 Gray [Mass.] 381; Doremus v. Selden, 19 Johns. [N. Y.] 213; Lockhart v. Power, 2 Watts [Pa.] 371; Ulmer v. Cunningham, 2 Me. 117; Governor v. Webb, 12 Ga. 189; City of Chicago v. Speer, 66 Ill. 154; Murphy v. Orr, 32 Ill. 489; Davey v. Dakota County, 19 Neb. 721; Boldt v. Budwig, 19 Neb. 741; Palmer v. Davis, 28 N.Y. 242; Peabody v. Washington County Mutual Ins. Co., 20 Barb. [N. Y.] 339; Rowe v. Bacigalluppi, 21 Cal. 633; Phenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neb. 847; Hartford Fire Ins. Co. v. Olcott, 97 Ill. 458; Hastings v. Westchester Fire Ins. Co., 73 N.Y. 146.)

Insurer did not waive provisions of the policy. (Ryan v. Springfield Fire & Marine Ins. Co., 46 Wis. 671; Putnam Tool Co. v. Fitchburg Fire Ins. Co., 145 Mass. 269; Weed v. London & Lancashire Fire Ins. Co., 116 N.Y. 106; Phoenix Ins. Co. v. Lawrence, 4 Met. [Ky.] 9; Richards v. Wetmore, 66 Cal. 365; Wheaton v. North British & Mercantile Ins. Co., 76 Cal. 432; McCormick v. Orient Ins. Co., 86 Cal. 262; Murphy v. People's Equitable Mutual Fire Ins. Co., 89 Mass. 239; Orient Ins. Co. v. Williamson, 98 Ga. 464; Shaffer v. Milwaukee Mechanics Ins. Co., 46 N.E. 557 [Ind.].)

References as to error in instructions: Dwelling-House Ins. Co. v. Brewster, 43 Neb. 528; Kelsey v. McLaughlin, 10 Neb. 6; Dinsmore v. Stimbert, 12 Neb. 433; School District v. Holmes, 16 Neb. 486; Insurance Co. of North America v. Bachler, 44 Neb. 560; AEtna Ins. Co. v. Resh, 40 Mich. 241; Bowman v. Franklin Fire Ins. Co., 40 Md. 620.

Hall & McCulloch, contra.

NORVAL, J. IRVINE, C., not sitting.

OPINION

The Facts are stated in the opinion.

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 5, 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 an 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 that 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 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. (Western Horse & Cattle Co. v. Sheidle, 18 Neb. 495; Farmers' & Merchants' Ins. 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 State Bank of Lushton v. Kelley, 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 the jury had specially found that the officers of the bank had actual knowledge or notice of the mortgage of the Kelley Company, the evidence would not have supported the finding, and the court therefore erred in giving the instruction." In the case at bar it was shown that Murphy & Lovett, the agents who issued the policy, were at the time subscribers of the Omaha Evening World, but there is no evidence in the record that they ever saw or knew of the article in question. Its...