Billings v. German Ins. Co
| Decision Date | 18 May 1892 |
| Citation | 52 N.W. 397,34 Neb. 502 |
| Parties | JAMES BILLINGS v. GERMAN INS. CO |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county. Tried below before BROADY, J.
REVERSED AND REMANDED.
E. W Thomas, and C. Gillespie, for plaintiff in error:
Having paid the mortgage Billings had the right to sue on the policy. (Ins. Co. v. Davenport, 37 Mich. 613; Hatch v. Ins. Co., 13 Rep. [Colo.], 293; Coates v. Ins. Co., 58 Md. 172; Art. 18, Am. L. Reg., 737; V. F. & M. Ins. Co. v. Feagin, 9 Rep. [Ga], 173.) On the question of waiver: Butz v. Ins. Co., 76 Mich 263; Phoenix Ins. Co. v. Barnd, 16 Neb. 90; Oshkosh G. L. Co. v. Ins. Co., 71 Wis. 454; Titus v. Ins. Co., 81 N.Y. 410; Ins. Co. v Norton, 96 U.S. 234; Ins. Co. v. Kittle, 39 Mich. 54; Brink v. Ins. Co., 80 N.Y. 108; Prentice v. Ins. Co. 77, Id., 483; Oakes v. Ins. Co., 135 Mass. 248; Ins. Co. v. Etherton, 25 Neb. 506; Young v. Ins. Co., 45 Iowa 378; Ins. Co. v. Kranich, 36 Mich. 289.
Frank Martin, contra, cited, on the question of waiver: Cook v. Ins. Co., 47 N.W. [Mich.], 568; Ins. Co. v. Mowry, 96 U.S. 544; Cleaver v. Ins. Co., 32 N.W. [Mich.], 660; Golden v. Ins. Co., 49 N.W. [Minn.], 246; German Ins. Co. v. Heiduk, 30 Neb. 288; Guernsey v. Ins. Co., 17 Minn. 105; Richards v. Ins. Co., 47 N.W. [ ], 351; McFarland v. Ins. Co., 49 N.W. [Minn.], 254; Diehel v. Ins. Co., 58 Pa. 443; Devens v. Ins. Co., 83 N.Y. 168; Graham v. Ins. Co., 9 Daly [N. Y.], 341; Titus v. Ins. Co., 81 N.Y. 411; Ins. Co. v. Cooper, 60 Ill. 510; Hale v. Ins. Co., 6 Gray [Mass.], 169.
This is an action upon a policy of insurance against loss by fire. The property insured was a frame barn situated on the plaintiff's farm in Richardson county. The policy was issued April 12, 1886, for five years, and the barn was destroyed by fire September 14, 1889.
The defendant filed an amended answer, in which it admits that it received the premium and issued the policy as alleged, but it avers that after said policy was delivered it became void for two reasons:
First--Because on July 20, 1888, a suit was commenced in the district court of said county of Richardson by the Equitable Trust Company, of Omaha, against James Billings, to foreclose a mortgage upon the property insured, and a decree of foreclosure was entered in that suit.
It is not alleged, however, that the property was sold under decree.
Second--Because after the execution and delivery of the policy, to-wit, on April 10, 1888, the plaintiff made a mortgage on the property insured to the First National Bank of Falls City, in the sum of $ 1.893.60.
It was further alleged that, at the time of the fire, the barn was vacant and unoccupied, but there was no evidence to sustain that allegation.
In the reply the plaintiff admits that a suit to foreclose a mortgage on the premises insured was commenced as alleged in the amended answer, but he avers that said mortgage was the same mortgage mentioned in the policy of insurance, to the holder of which the loss, if any should occur, was by the terms of the policy made payable. It is further alleged in the reply that plaintiff had paid the said mortgage after the foreclosure suit was commenced and that he was therefore the owner of the policy and entitled to bring suit thereon.
It is also averred that the mortgage existed before the making of the policy, as defendant well knew.
As to the mortgage for $ 1,893.60, given by plaintiff to the First National Bank, the reply alleges that that mortgage was made with the knowledge and consent of defendant; that after the loss by fire, the defendant, with full knowledge of the facts, and of the existence of said mortgage, waived the right to insist on a forfeiture therefor by urging and inducing plaintiff, at considerable trouble and expense to him, to prepare and forward to the company proofs of his loss, and to incur other expense and trouble, thereby leading plaintiff to believe that its objection to paying the loss was based on entirely different grounds, and not on the ground that such mortgage had been made.
After the fire the defendant, with knowledge of the alleged ground of forfeiture, entered into negotiation with plaintiff for settlement.
The provision of the policy referred to in defendant's amended answer which it is claimed was violated by plaintiff so as to render the policy void, is numbered "V" in printed part of the policy. The material part of that section is as follows: "When property insured by this policy, or any part thereof, shall be alienated or incumbered, * * * without the consent of the company indorsed thereon, * * * or if a suit be commenced to foreclose a mortgage on the property insured, * * * this policy shall at once cease to be binding. "
Upon the trial of the case, after all the evidence had been introduced and instructions in writing had been requested by the plaintiff's attorneys, the court refused to give any of said instructions, but at the request of defendant instructed the jury as follows: "The jury are instructed that under the pleadings, proofs, and law in this case your verdict must be for the defendant." The jury having found for defendant as instructed by the court, and a motion for a new trial having been overruled, judgment was entered on the verdict.
The testimony shows that immediately after the fire the local agent at Falls City was notified of the loss, and he notified his company. The company thereupon sent the following letter to him:
Afterwards he received from the state agent the following letter:
The plaintiff also received from the state agent the following letters:
"LINCOLN, NEB., Jan. 5, 1890.
Mr. James Billings, Salem, Neb.--DEAR SIR: I am in receipt of letter under date of Dec. 30, from one E. W. Thomas, of Falls City, Neb. written at your request concerning my letter to you of Dec. 23 last, in regard to the pretended proofs sent by you to the company in your claim under policy No. 214, Falls City agency. In reply to this last letter written, wherein it is stated that you have 'done your best' to comply with the conditions of said policy as to proofs, and intimating that you do not clearly understand what more is desired from you, will say that my letter of said date was clearly definite, but that you may more fully understand me, I will first ask for mortgages on the premises at the time of the alleged fire, giving from whom and to whom, date and amount of same, giving the description of the land named in them. When this is received will indicate the next wanted.
The testimony also shows that the plaintiff, by reason of the objections to the proofs of loss, had such proofs formally prepared by an attorney at an expense of eight or ten dollars and sent them to the company. The testimony also shows that Mr. Wash went to...
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