American Fire Insurance Company of New York v. Buckstaff Brothers Manufacturing Company

• Decision Date: 18 November 1897
• Docket Number: 7585
• Citation: 72 N.W. 1047,52 Neb. 676
• Parties: AMERICAN FIRE INSURANCE COMPANY OF NEW YORK v. BUCKSTAFF BROTHERS MANUFACTURING COMPANY
• Court: Nebraska Supreme Court

72 N.W. 1047

52 Neb. 676

AMERICAN FIRE INSURANCE COMPANY OF NEW YORK v. BUCKSTAFF BROTHERS MANUFACTURING COMPANY

No. 7585

Supreme Court of Nebraska

November 18, 1897

ERROR from the district court of Lancaster county. Tried below before HALL, J. Reversed.

REVERSED AND REMANDED.

Jacob Fawcett, Stevens & Cochran, Greene & Breckenridge, and C. J Greene, for plaintiff in error.

Charles O. Whedon, contra.

OPINION

RYAN C.

The Buckstaff Brothers Manufacturing Company, a corporation began this action in the district court of Lancaster county for the recovery of the amount of damage which it alleged it had sustained by the destruction by fire of certain property covered by two policies of insurance issued by the American Fire Insurance Company of New York. There was a verdict in accordance with the prayer of the petition and the insurance company prosecutes this proceeding in error to reverse the judgment thereon rendered. In the discussion of the case we shall designate the above named manufacturing company as plaintiff and the insurance company as defendant, conformably with their relations to the case at its inception.

The property insured was described in the policy under three items, upon each of which a certain amount of insurance was placed, as shown by the following language employed in both policies:

"$ 225 on its one-story gravel and board roof building, all adjoining and communicating, and occupied by the assured as a boiler and engine house, brick machinery room, clay-mixing rooms, and dry tunnels building.

"$ 75 on boilers, foundations, settings, and iron smoke-stack, engines, foundations, and settings, pumps and all their immediate connections while contained therein.

"$ 700 on fixed and movable machinery of all kinds (except engines, boilers, and pumps), shafting, belting, gearing, hangers, pulleys, conveyers, brick machines, clay crushers, pug mills, iron cars, trucks, tracks, pallets, blowers and fans, tools, implements, millwright work, steam and water pipes, while contained therein."

It was averred in the petition that the property insured was all real property, and at the date of the policies until the time of the fire was used in the process and business of manufacturing brick, and that said property constituted a brick manufactory at the time it was burned. The contentions in the case which we shall consider have reference to the above averments, that the property described in the three items noted in the policies was real property at the time of its destruction. To an understanding of the bearing of the claim of plaintiff that this property was realty, it is only necessary to quote three of the instructions given by the district court in the trial of the case, which instructions are as follows:

"7. A statute of this state provides that 'whenever any policy of insurance shall be written to insure any real property in this state against loss by fire, * * * and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or his assigns, the amount of the insurance written in such policy shall be taken conclusively to be the true value of the property insured and the true amount of loss and measure of damages.' This statute was enacted and based upon sound principles of public policy, and not upon consideration of possible benefits or disadvantages to any individual or corporation.

"8. The parties to an insurance contract are incompetent and incapable in law to make any stipulation or agreement in the policy, or to do any act or acts the effect of which is to annul or abrogate the provisions of t...