Commercial Union Assur. Co. v. Shoemaker

• Decision Date: 04 December 1901
• Citation: Commercial Union Assur. Co. v. Shoemaker, 63 Neb. 173, 88 N.W. 156 (Neb. 1901)
• Parties: COMMERCIAL UNION ASSUR. CO., LIMITED, OF LONDON, ET AL. v. SHOEMAKER.
• Court: Nebraska Supreme Court

63 Neb. 173

88 N.W. 156

COMMERCIAL UNION ASSUR. CO., LIMITED, OF LONDON, ET AL.

v.SHOEMAKER.

Supreme Court of Nebraska.

Dec. 4, 1901.

Syllabus by the Court.

1. In an action for conspiracy, the damage, and not the wrongful confederation, is the gist of the action.

2. To state a cause of action for conspiracy, it is necessary for the pleader to allege, not only the confederation and the conspiracy and the doing of the wrongful act, but also the facts from which damages have resulted.

3. The joinder of a cause of action in a contract with a cause of action in tort is a misjoinder of causes of action.

Commissioners' opinion. Department No. 2. Error to district court, Lancaster county; Hall, Judge.

Action by Martha J. Shoemaker against the Commercial Union Assurance Company, Limited, of London, and others. Judgment for plaintiff. Defendants bring error. Reversed.Sylvester G. Williams, A. B. Coffroth, Edward C. Wright, and Flower, Peters & Bowersock, for plaintiffs in error.

Walter J. Lamb and Geo. H. Adams, for defendant in error.

OLDHAM, C.

This is an action brought by Martha J. Shoemaker against the Commercial Union Assurance Company, Limited, of London, the Concordia Loan & Trust Company, and Cornelia J. Longaker, but for what purpose is not clearly stated. The defendant in error (plaintiff below) in her petition, after various recitals of past events, which, in substance, were that in November, 1889, she had given a mortgage to the Lombard Investment Company on certain property in the city of Lincoln for $1,100, due in five years thereafter, and as a further security she had also procured a policy of insurance on the property mortgaged for a like period of five years, and had delivered this policy to the Lombard Investment Company, and that afterwards this mortgage had been sold and assigned to the defendant Longaker; that on or about the maturity of this mortgage she applied to the defendant Concordia Loan & Trust Company, through its agent at Lincoln, Neb., for an extension of said mortgage for three years, which was granted on certain conditions, not material to this discussion; after setting out the clause of the mortgage that provides that, if the mortgagor fails to keep the mortgaged property insured for the benefit of the mortgagee, then the mortgagee has the right to take out a policy of insurance thereon, and charge the premium to the mortgagor,--proceeds as follows: “Defendants agreed to so insure the said property, and charge the same to the plaintiff, according to the terms of said provision in said mortgage above set out; that plaintiff was thereafter informed by both defendants, the Commercial Union Assurance Company, Limited, and the Concordia Loan & Trust Company, that such insurance had been so taken out, and, relying upon said information so received, made no further effort to insure the said property, but all the time believing that the same was insured as by them stated, until after the said buildings were completely destroyed and burned by fire, as hereinafter stated.” (9) That at the time of the maturity of the mortgage above mentioned, to wit, November 11, 1894, and for some time prior thereto, this plaintiff was negotiating with the defendant the Concordia Loan & Trust Company for an extension of said loan, and did finally negotiate said extension; that the plaintiff at the time of taking out said insurance in the Orient Insurance Company, of Hartford, Connecticut, turned over said policy to the Lombard Investment Company as mortgagee, and the said Lombard Investment Company, as plaintiff is informed and believes, turned the same over to the defendant Cornelia J. Longaker at the time it sold and indorsed said note and mortgage to her, or held the same for her benefit thereafter, and the same was so held by either the said Cornelia J. Longaker or the Lombard Investment Company until its expiration and the maturity of said loan, unless the same was turned over to the Concordia Loan & Trust Company by the Lombard Investment Company; that during the negotiation for the extension of said loan the plaintiff offered to renew said insurance in the Orient Insurance Company, but the defendant the Concordia Loan & Trust Company objected to the renewal of said insurance in said company, and notified plaintiff and agreed with plaintiff that it would insure the said property in the defendant the Commercial Union Assurance Company, Limited, and notified and agreed with plaintiff that it would take care of said insurance; that it would insure the property, and call on the plaintiff for the premium, and that if plaintiff did not or could not pay the said premium promptly the amount of the same would, under the provisions of said mortgage and the extension thereof, be added to said mortgage, and become a loan against said property; that plaintiff thereupon accepted said proffer and agreement of said defendant the Concordia Loan & Trust Company to so insure said property, and abandoned her attempt to renew in said Orient Insurance Company, and relied upon said defendant the Concordia Loan & Trust Company to so insure the said property in the defendant the Commercial Union Assurance Company, Limited; that soon thereafter this plaintiff received a notice from the defendant the Concordia Loan & Trust Company, and also from the defendant the Commercial Union Assurance Company, Limited, and by and through its agents Crutcher & Welsh, that said property has been insured, and calling on the plaintiff to pay the premium, to wit, $14.40; that soon thereafter the plaintiff paid the premium as she was requested to do by the defendant the Concordia Loan & Trust Company and the said Concordia Loan & Trust Company, and to its agent H. B. Sawyer, by its authority and direction; that said payment of said premium was made on the 19th day of January, 1895, and that no notification was ever served upon this plaintiff that said property had not been insured by either of the defendants, in any way whatever, until after the property had been destroyed by fire without the fault, negligence, or procurement of this plaintiff, which fire occurred on the 24th day of April, 1895, and which fire completely destroyed and burned up the said buildings, which were at said time of the fire of the value of $1,500; that immediately after said fire this plaintiff notified the resident agent of the Concordia Loan & Trust Company of the fire, and he thereupon at once promised to look after it, and took...