German Ins. Co. v. Heiduk

• Citation: 30 Neb. 288,46 N.W. 481
• Parties: GERMAN INS. CO. v. HEIDUK ET AL.
• Decision Date: 17 September 1890
• Court: Supreme Court of Nebraska

30 Neb. 288

46 N.W. 481

GERMAN INS. CO.

v.HEIDUK ET AL.

Supreme Court of Nebraska.

Sept. 17, 1890.

Syllabus by the Court.

1. The policy in suit provides that the insured must obtain the written consent of the company for all additional insurance on the property insured or he shall not recover in case of loss, and further provides that “the use of general terms or anything less than a distinct specific agreement, clearly expressed and indorsed on the policy, and signed by a duly-authorized agent of the company, should not be construed as a waiver of any printed condition of the policy, and no notice to, and no consent or agreement by, any local agent should affect any condition of the policy, until such consent or agreement is indorsed thereon.” The insured subsequently procured further insurance, of which the local agent was notified, and orally consented thereto; but such agreement was not indorsed on the policy. The property was destroyed by fire. Held, that the notice to and the oral consent of the local agent did not bind the company, and that the additional insurance, obtained without the written consent stipulated in the policy, rendered the policy void.

2. In an action on a policy containing a provision that, in case of other policies, the insured shall recover no greater proportion of the loss than the sum insured by the policy bears to whole amount of the policies, it was admitted that there was other insurance on the property, amounting to $900, and there was before the jury testimony tending to show that the entire loss was less than the whole amount of insurance. Held, that it was error to instruct the jury that the measure of damages was the market value of the goods destroyed.

Error to district court, Cuming county; NORRIS, Judge.Dickey & Heiskell, Uriah Bruner, and J. C. Crawford, for plaintiff in error.

E. K. Valentine, T. M. Franse, and M. McLaughlin, for defendant in error.

NORVAL, J.

This is an action upon a policy of insurance issued by the defendant, June 1, 1887, for one year. The insurance was for $1,500, upon the plaintiffs' stock of clothing and gents' furnishing goods, situated at West Point, Neb. On the 26th day of November, 1881, while said policy was in full force, the property was totally destroyed by fire. The petition is in the usual form. The policy sued on is attached to the petition, and contains this written clause: “$400 other insurance concurrent herewith only permitted.” The defendant, by its answer, admits the execution and delivery of the policy, and denies all other allegations of the petition. The defendant, as a second defense, alleges “that said policy of insurance described in the petition is in the regular form of policies issued by this defendant, and that the plaintiffs accepted and received said policy with a full knowledge of the contents thereof.” Defendant further avers that said policy contains a certain provision, in the following words and figures, to-wit, “$400 other insurance concurrent herewith only permitted;” and defendant further avers that on or about the 1st day of June, A. D. 1887, these plaintiffs placed the full amount of said concurrent insurance allowed by the terms of the policy issued by this defendant with the Germania Insurance Company, which company issued to these plaintiffs their certain policy of insurance for the sum of $400 on said stock, and $100 on fixtures in said store, which said policy was in full force and effect from the date thereof, to the time and date of said loss by said fire. Defendant further avers that said policy of insurance issued by this defendant contains a certain clause in the following words, to-wit: “The insured, under this policy, must obtain consent of this company for all additional insurance or policies, valid or invalid, made or taken before or after the issue of this policy, on the property hereby insured, and for all changes that may be made in such additional insurance, and have such consent indorsed on this policy; otherwise the insured shall not recover in case of loss.” Defendant further avers that said plaintiffs, with full knowledge of the said printed terms, and also of the specific written terms of said policy, purposely and knowingly, and without the knowledge or consent of this defendant company, and in violation of said express terms and provisions, did, on the 25th day of October, A. D. 1887, make application to the Orient Insurance Company, of Hartford, Conn., for a policy of insurance for the sum of $500 on the stock of goods insured by the policy issued by this defendant, and described in the petition; and that on said 25th day of October, A. D. 1887, said Orient Insurance Company issued and delivered to said plaintiffs their certain policy, (No. 302,988,) for the sum of $500, insuring their stock of goods, mentioned in defendant's policy, and described in the petition, against loss or damage by fire, for one year from the date thereof. Said policy so issued by the Orient Insurance Company was in full force and effect at the time said fire occurred, to-wit, on the 26th day of November, A. D. 1887. Defendant further avers that the said plaintiffs, by virtue of the foregoing allegations and averments, released this defendant from all obligations and liability under the terms of said policy No. 528, and the same was void from and after October 25, A. D. 1887. The plaintiffs filed the following reply: “(1) The plaintiffs, for reply to defendant's answer in the above action, deny each and every allegation of new matter contained therein. (2) The plaintiffs allege that the defendant had notice of the additional insurance complained of in its said answer immediately prior to the issuing of said additional policy of insurance, and the defendant, with full knowledge of all the facts, gave to the plaintiffs its unqualified consent. (3) That, immediately after said policy was issued and delivered to the plaintiffs, they applied to defendant's agent who issued, signed, and delivered the policy upon which this suit was brought, and requested him to indorse the amount of said additional insurance upon said policy; and said agent then and there assured the plaintiffs that such indorsement was not necessary, and that the policy was all right, and as binding upon the defendant company as though the additional insurance were indorsed thereon. (4) The de fendant is estopped to dispute its liability upon said policy of insurance, or to claim a forfeiture of said policy, because of the facts set out in paragraphs two and three of this reply.” To the new matter stated in the reply, the defendant interposed a general demurrer, which was overruled by the court. Upon a jury trial, the plaintiffs recovered a judgment for $1,596.25 The record discloses that the policy in suit was issued by one D. J. Drebert, the local agent of the defendant at West Point; and that at the same time the plaintiff took out a policy in the Germania Insurance Company for $400, on the same property; and that subsequently, on the 25th day of October, 1887, the Orient Insurance Company, of Hartford, Conn., at the plaintiff's request, issued its policy for the sum of $500, on the stock of goods insured by the policy in suit. The plaintiffs, over the defendant's objections, introduced testimony tending to prove that, prior to the issuing of the policy by the Orient Company, Drebert, the local agent of the defendant, verbally consented to such additional insurance; and that, after said last policy was written, the plaintiff exhibited the policy issued by the defendant to Drebert, and requested him to indorse the amount of the additional insurance thereon; and that Drebert replied that “that makes no difference. The policy is good. It need not be changed.” The testimony introduced by the defendant tends to establish that neither the defendant nor Drebert had any knowledge that such additional insurance had been written until after the fire, and did not verbally or otherwise consent to such insurance.

On the question of waiver by the defendant of the conditions of the policy relating to additional insurance, the court, on its own motion, gave the following instructions: “(1) In the policy sued on is a provision permitting $400 other concurrent insurance, and the condition that the insured must obtain the consent of the company for all additional insurance taken before or after the issue of said policy on the property thereby insured, and have such consent indorsed on the policy; otherwise the insured shall not recover in case of loss. The court instructs you that if you find from the evidence that the plaintiffs, after receiving the policy from the defendant, and before the loss in question occurred, obtained other insurance, in addition to the $400 concurrent insurance permitted by said policy, upon the property, which had not expired at the time of the fire, and that no notice thereof was given defendant, its agents or officers, before the fire, or to which the company did not consent, then plaintiffs' policy would be void, and he cannot recover in this suit, and your verdict must be for the defendant. * * * (8) If you believe from the evidence that Daniel Drebert was the agent of the defendant at West Point for taking applications for insurance, and for writing, issuing, and delivering policies for the defendant company, and that he was notified by the plaintiffs of the additional insurance placed on plaintiffs' property, and that he did not object to the same, or suggest any breach of the condition of the original policy in consequence thereof, then the defendant is estopped from now setting up such additional...