Burlington Insurance Company v. Campbell & Talbot

• Decision Date: 16 October 1894
• Docket Number: 5742
• Parties: BURLINGTON INSURANCE COMPANY v. CAMPBELL & TALBOT
• Court: Nebraska Supreme Court

60 N.W. 599

42 Neb. 208

BURLINGTON INSURANCE COMPANY v. CAMPBELL & TALBOT

No. 5742

Supreme Court of Nebraska

October 16, 1894

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

REVERSED AND REMANDED.

Wharton & Baird, for plaintiff in error:

The evidence clearly justifies the conclusion that no consent was ever given by the company to the removal of the goods in question, and that no notice of such removal was ever given until after the fire occurred, and that no waiver of the conditions of the policy, actual or by implication, can be claimed. The defendants in error cannot, therefore, recover on the policy. (Lyons v. Providence Washington Ins Co., 14 R. I., 111; Wood v. Hartford Fire Ins Co., 13 Conn. 544; Wall v. East River Mutual Ins Co., 3 Seld. [N. Y.], 370; Boynton v. Clinton & Essex Mutual Ins. Co., 16 Barb. [N. Y.], 254; Harris v. Royal Canadian Ins. Co., 53 Iowa 236; McCluer v. Girard Fire & Marine Ins. Co., 43 Iowa 349.)

The company had no valid notice of the removal of the goods. (Hill v. Helton, 80 Ala. 528; Bohart v. Oberne, 36 Kan. 284; Russell v. Cedar Rapids Ins. Co., 42 N.W. [Ia.], 654.)

Where written consent to a waiver of the terms of the policy is required as a part of the contract of insurance, no waiver can be held binding upon the company unless the same is in writing, as provided in its policy; and no agent or officer of the company could possibly waive such requirement. (Kyte v. Commercial Union Assurance Co., 10 N.E. [Mass.], 518; Hankins v. Rockford Ins. Co. of Rockford, Ill. 35 N.W. [Wis.], 34; Birmingham Fire Ins. Co. v. Kroegher, 2 Norris [Pa.], 264; Walsh v. Hartford Fire Ins Co., 7 Ins. L. J. [N. Y.], 423; German Ins. Co. v. Heiduk, 30 Neb. 288.)

V. O. Strickler, contra:

Where the relation of principal and agent has once been established, it will be presumed to continue until shown to have been dissolved. (Columbus Co. v. Hurford, 1 Neb. 146.)

Where the knowledge of a broken condition comes home to the company, and it retains all the premium and says nothing whatever about forfeiture, it will be deemed to have waived the forfeiture. (Phoenix Ins. Co. v. Lansing, 15 Neb. 495; Ins. Co. of North America v. McLimans, 28 Neb. 658; Schoneman v. Western Horse & Cattle Ins. Co., 16 Neb. 405; Viele v. Germania Ins. Co., 26 Iowa 9; Miner v. Phoenix Ins. Co., 27 Wis. 698; Franklin v. Atlantic Fire Ins. Co., 42 Mo. 456.)

OPINION

The opinion contains a statement of the case.

NORVAL, C. J.

This action was brought by Campbell & Talbot against the Burlington Insurance Company on a policy of insurance against loss or damage by fire. There was a trial by jury, and at the close of the testimony the defendant moved that the jury be instructed to find in its favor, which was overruled by the court, and a verdict was returned for the plaintiffs, upon which judgment was entered. The defendant company prosecutes a petition in error to this court.

There is but little controversy as to most of the facts. The policy was issued on the 16th day of April, 1889, to continue in force for the period of one year, and the amount of the insurance was $ 350 on plaintiffs' "printing press type, paper, and other printing supplies and office furniture and fixtures, all while contained in the five-story brick metal or composition roof building, known as the 'Ramge Building,' and situated on the southeast corner of Fifteenth and Harney streets, Omaha, Nebraska." The property covered by the policy was removed by the plaintiffs about the 1st day of January, 1890, from the said building in which it was situated when the policy was issued, and placed in the Hill Building, located at the southwest corner of Fifteenth and Douglas streets, in the said city of Omaha. The last mentioned building was burned on the 13th day of April, 1890, and a portion of plaintiffs' said printing outfit, was likewise destroyed by fire, and thereafter the plaintiffs made due proofs of loss as required by the policy. The defense to the action is that the policy was avoided by reason of the removal of the property from the building in which it was contained when the risk was written. The policy, after giving a description of the property, and its location, provides that Campbell & Talbot are insured "against all such immediate loss or damage sustained by the assured as may occur by fire to the property above described, only while contained on or in the premises herein described, not exceeding the sum insured." The policy also contained the following condition: "This company shall not be liable for theft at, or after, a fire, * * * nor for loss or damage to the property in any other locality than herein specified." The contention of the plaintiffs is that the company waived the foregoing stipulations of the policy by consenting to the removal of the property, both prior and subsequent to such removal. This is the sole question we are called upon to consider. It appears that Ayerst & Taffinder were the local agents of the company at Omaha when the risk was taken, and that they issued the policy in question. It is insisted that notice of the intention of the assured to remove the property to the Hill Building was given to Mr. Ayerst, of the firm of Ayerst & Taffinder, and that he consented to such removal. The evidence relating thereto is conflicting. On one side is the testimony of N. O. Talbot, one of the defendants in error, to the effect that shortly before January 1, 1890, he informed Mr. Ayerst that it was the intention to remove the insured property from the Ramge Building into the Hill Building about the first of...