Farmers & Merchants Insurance Co. v. Peterson

• Decision Date: 07 April 1896
• Docket Number: 6474
• Citation: 66 N.W. 847,47 Neb. 747
• Parties: FARMERS & MERCHANTS INSURANCE COMPANY v. JACOB PETERSON
• Court: Nebraska Supreme Court

66 N.W. 847

47 Neb. 747

FARMERS & MERCHANTS INSURANCE COMPANY v. JACOB PETERSON

No. 6474

Supreme Court of Nebraska

April 7, 1896

ERROR from the district court of Cuming county. Tried below before NORRIS, J.

AFFIRMED.

J. C Crawford, for plaintiff in error.

A. R Oleson and C. C. McNish, contra.

OPINION

HARRISON, J.

On the 8th day of October, 1892, the defendant in error commenced this action against the plaintiff in error in the district court of Cuming county to recover the sum of $ 1,250, alleged to be his due by reason of the destruction by fire of property of which he was the owner, and covering which and insuring him against such destruction he held a policy issued by plaintiff in error, hereinafter referred to as the "company." An answer and a reply were filed whereby issues were joined and a trial thereof had before the court and a jury. The defendant in error was sworn and testified. The issuance of the policy and the insurance thereby of the property had been established by the pleadings. During the time the defendant in error was testifying in his own behalf it was admitted on the part of the company that the premium or consideration for the contract of insurance, had been paid by defendant in error; that of the property insured there had been destroyed by fire of date January 29, 1892, sufficient to aggregate in value $ 1,097; that due notice of the loss had been given and demand made for payment. It was proved that no payment had ever been made. At the close of his own testimony, with the facts as just indicated either admitted or proved, the defendant in error rested his case. For what further occurred at this stage of the proceedings we will quote from the record: "At this time the defendant moved that the case be dismissed for the reason that it is incumbent upon the plaintiff to prove, as alleged, that he has kept and performed his part of the agreement, which they haven't attempted to prove. Motion overruled, to which ruling defendant excepts. Whereupon defendant rested. At this time plaintiff asked the court to instruct the jury to return a verdict for plaintiff for the amount of $ 1,097 and interest from the 29th day of January, 1892. At this time the defendant asked the court to instruct the jury that they cannot bring in a verdict for the plaintiff exceeding the amount defendant offered to admit, $ 190.63. Instruction asked for by plaintiff given, to which instruction defendant excepts. Instructions asked for by defendant denied, to which ruling defendant excepts." The jury, in accordance with the instruction of the court, returned a verdict for plaintiff in the sum of $ 1,132.20, being the $ 1,097 and interest thereon, and after motion for new trial heard and overruled, judgment was rendered for such sum. The case is presented here by error proceedings in behalf of the company.

It is urged that the defendant in error did not prove his ownership of the insured property, either at the time of its insurance or of its destruction by fire. On this point it may be said it has been held by this court: "A policy of insurance is prima facie an admission by the insurers of the title of the insured to the property embraced in the policy." (Western Horse & Cattle Ins. Co. v. Scheidle, 18 Neb. 495, 25 N.W. 620.) In the text of the opinion in that case it was observed: "The mere fact of the contract of insurance being effected, should, we think, be enough prima facie to prove the ownership of the property. If the contract was procured by fraud and such ownership did not exist, or if the insurance was simply a wager policy, it was proper matter of defense, and if relied upon should be pleaded as a defense. The same may be said of the second objection, that it is not alleged that defendant in error was the owner of the horse at the time of his death."

It is insisted that the defendant in error, having pleaded in his petition that he kept and performed all and singular the conditions of the policy on his part to be kept and performed, and this allegation being denied in the answer of the company, it devolved on plaintiff in error to prove that there had been no breach of the condition of the policy by which it was stated that it was avoided if the property was mortgaged or incumbered while insured. This was a matter of defense, and it was for the company to allege it and prove it, and it was not the duty of the insured to, in the first instance, negative the fact that the property had been mortgaged, in either pleading or proof, or to prove it under the general allegations in respect to the conditions of the policy hereinbefore set forth. (Butternut Mfg. Co. v. Manufacturers' Mutual Fire Ins. Co., 78 Wis. 202, 47 N.W. 366; Perine v. Grand Lodge A. O. U. W., 51 Minn. 224, 53 N.W. 367; Price v. Phoenix Mutual Ins. Co., 17 Minn. 497; Bank of River Falls v. German-American Ins. Co., 72 Wis. 535, 40 N.W. 506.)

For a thorough understanding of the further question discussed in the briefs it will be necessary to know fully certain allegations of the answer of the company and the reply thereto. In the answer it was alleged:

"This defendant, for further answer to plaintiff's petition says that prior to the issuance of the policy of insurance to the plaintiff by this defendant the plaintiff made a written application for said insurance in which he stated that none of said property was incumbered in any way, together with various other statements therein contained, a copy of which application is hereto attached and made a part hereof and marked exhibit 'A;' that relying upon the truth of the statements therein contained the defendant issued the policy insuring the property in said application described.

"8. That the said policy of insurance sued on in this action contains the following conditions: 'This insurance is based on the representations contained in the assured's application of even number herewith, on...