Dwelling House Ins. Co. v. Brewster

• Decision Date: 17 January 1895
• Citation: 61 N.W. 746,43 Neb. 528
• Parties: DWELLING HOUSE INS. CO. v. BREWSTER.
• Court: Nebraska Supreme Court

43 Neb. 528

61 N.W. 746

DWELLING HOUSE INS. CO.

v.BREWSTER.

Supreme Court of Nebraska.

Jan. 17, 1895.

Syllabus by the Court.

1. In a reply, certain matters were alleged, which it was claimed constituted either waivers, estoppel, or avoidance of the effect of matters of defense contained in the allegations of an answer to which they were respectively directed and applied. The reply also contained a general denial of each and every allegation of the answer. Held, that any allegations of the answer to which the reply pleaded a waiver, an estoppel, or matter to avoid its effect must be treated as admitted.

2. In stating the case to the jury in its instructions the court should clearly outline the issues as presented by the pleadings, and should not inform them that facts which are admitted are denied.

3. An instruction which, as to certain of the issues in the case on trial, placed the burden of proof upon the wrong party, or one upon whom, under the conditions of the questions to be tried as presented by the pleadings, such burden did not rest, and where the evidence adduced, relating to such issues, was conflicting, held, to be erroneous and misleading and prejudicial to the rights of such party, and not to fairly submit the issues to the jury, and to call for a reversal of the judgment.

4. Proofs of loss required by a condition of an insurance policy are waived when the insurance company denies any liability for the loss on the ground that the policy was not in force at the date of the loss.

Error to district court, Lancaster county; Hall, Judge.

Action by George W. Brewster against the Dwelling House Insurance Company. From a judgment for plaintiff, defendant brings error. Reversed.Cornish & Lamb, for plaintiff in error.

A. Norman and Marquett, Deweese & Hall, for defendant in error.

HARRISON, J.

The defendant in error commenced this action in the district court of Lancaster county, alleging, in substance, in his petition, that on August 9, 1886, he was the owner of a dwelling house in Brewster, Blaine county, and the insurance company (plaintiff in error), in consideration of the sum of $40, issued and delivered to him, of the above date, a policy of insurance insuring the above building against loss or damage by fire in the sum of $1,000 during a term of five years; that on the 2d day of December, 1887, the building so insured was wholly destroyed by fire, and on or about the 6th day of December, 1887, he gave the insurance company due notice and proof of the fire and loss, “and has duly performed on his part all the conditions of said policy of insurance”; that the building was of the value of $1,000 at the time of its destruction by fire; that payment of the loss has been demanded by the insured of the company, but such payment has never been made.

The company filed an answer, which was as follows: “For answer to the plaintiff's petition the defendant herein denies each and every allegation therein contained, not herein specifically admitted. Second. The defendant admits that on the 9th day of August, 1886, they made and delivered their policy of insurance on the property described in plaintiff's petition, and that the building therein insured was destroyed by fire on the 2d day of December, 1887, and that the defendants have not paid the loss occasioned thereby. Third. The defendants further answer, and allege that the said insurance policy contains, among other things, a provision as follows: ‘By acceptance of this policy the assured covenants that the application therefor shall be and form a part thereof, and a warranty by the insured.’ Fourth. The plaintiff made his written application for the said policy of insurance, wherein he stated that there were no stovepipes running through the roof of the said building. The said statement was untrue, and there was at said time a stovepipe running through the roof of said building, as the plaintiff then well knew; and said statement was made to deceive this defendant. The plaintiff further warranted to the defendant as follows: ‘Warranted by the insured that all stovepipes will enter stone or brick chimneys on and after October 9th, 1886. Geo. W. Brewster.’ Defendant alleges that plaintiff failed and neglected to comply with term of said warranty made by him, and that stovepipes in said building not entering stone or brick chimneys were allowed to remain in the same until the time of its destruction. This defendant company had no agency or person representing them in the county where said building was located, but this contract was made at the office of their agent in Ainsworth, Brown county, Nebraska; and this defendant, in issuing said policy, relied on the statements made by the plaintiff. The said building was represented by the plaintiff to be and was insured as a private dwelling, but was then and at the time of its destruction used as a hotel or boarding house, as the plaintiff at all times well knew. The said insurance policy provides, among other things, that in case of the destruction of the property insured the assured shall forthwith give notice of the loss to the defendant company, and within thirty days from the time of its destruction furnish proof thereof, signed and verified by the claimant, stating the origin and circumstances of the fire; title and cash value of incumbrances upon and interests of the claimant in the insured property; amount of the loss; other insurance, if any; the changes of title, use, or occupation or possession of the building; what incumbrances, if any, were made during the time of insurance; and how and for what purpose the building was occupied at the time of the fire,--the same to have attached a certificate of a magistrate nearest the place of fire, certifing that he believed the claim to be just and honest. The defendant alleges that plaintiff failed and neglected to furnish proofs of loss as required by said provision, either in whole...