Cook v. Westchester Fire Insurance Company
| Decision Date | 04 April 1900 |
| Docket Number | 9,200 |
| Citation | 82 N.W. 315,60 Neb. 127 |
| Parties | JULIA F. COOK, APPELLEE, v. WESTCHESTER FIRE INSURANCE COMPANY, APPELLANT, IMPLEADED WITH O. V. PALMER & CO. AND CHARLES COOK, APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Washington county. Heard below before DICKINSON, J. Affirmed.
AFFIRMED.
Charles Offutt and W. W. Morsman, for appellant.
W. W Morsman: This court has, in two cases, decided since the decree was entered in the case at bar, settled the question involved. In Home Fire Ins. Co. v. Wood, 50 Neb 381, 385, wherein the facts were much like the case at bar it is said: In Slobodisky v. Phenix Ins. Co. 52 Neb. 395, it is said in the syllabus:
The decree of the court below upsets the most elementary rules in relation to the reformation of contracts in equity. The evidence does not establish a single one of the essential facts requisite to the exercise of that jurisdiction. There was a total and complete failure of proof. There was nothing in the nature of a mutual mistake of fact.
Walton & Mummert, contra:
The cases cited by appellant do not apply to the actual case as it is here. With due respect to counsel, we are forced to differ from his statements that "the facts" in the case of Home Fire Ins. Co. v. Wood, 50 Neb. 381, are "much" like those in the case at bar. The facts are entirely unlike. In that case the original contract was made as intended, and the question was whether the statement by the insured that he intended to carry about $ 5,500 stock and that he intended afterwards to take out more insurance, was sufficient notice of the additional insurance which he afterwards did take out, so as to prevent a forfeiture of the policy. The contract there conformed exactly to the facts as they existed at the time that the policy was made out. Future intentions or designs were not naturally a part of the policy as they might or might not be put into action. The insured failed to give notice of the other subsequent insurance, which by the terms of his policy was his duty to do and therefore forfeited his policy.
Both counsel for appellant and appellees cited and commented upon Trustees of St. Clara Academy v. Delaware Ins. Co. 66 N. W. [Wis.], 1140.
This is an appeal from a judgment of the district court of Washington county reforming and enforcing a contract of insurance. The property covered by the policy in suit consisted of a stock of merchandise and a two-story frame store-building. The personal property belonged to Charles Cook, and the realty to his mother, Julia F. Cook. Charles who was doing business under the trade name of O. V. Palmer & Co. occupied his mother's store, and was her agent for the purpose of keeping it insured. E. B. Carrigan, a local agent for the Westchester Fire Insurance Company, called on Mr. Cook and solicited his business. Cook told him to write $ 500 on the goods and $ 1,000 on the building. A few days later, four policies enclosed in an envelope were handed to Cook, who, without reading or examining them, put them in his safe and did not again see them until after the loss of the insured property. The cost of insuring the store-building was charged to Mrs. Cook's account by her son at the time the policy was issued. The premium is still retained by the company and there has been, so far as the record shows, no offer to pay it back. All the policies were written in favor of O. V. Palmer & Co. Payment of the one covering the store-building was refused on the ground...
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