German Ins. Co. v. Fairbank

• Decision Date: 15 September 1891
• Parties: GERMAN INS. CO. v. LOREN FAIRBANK
• Court: Nebraska Supreme Court

49 N.W. 711

32 Neb. 750

GERMAN INS. CO. v. LOREN FAIRBANK

Supreme Court of Nebraska

September 15, 1891

ERROR to the district court for Adams county. Tried below before GASLIN, J.

REVERSED AND REMANDED.

Jas. R Wash, and Adams, Lansing & Scott, for plaintiff in error cited: Cleaver v. Ins. Co., 65 Mich. 527; Stevens v. Ins. Co., 83 Ky. 7; Mallory v. Ins Co., 65 Iowa 450; McGowan v. Ins. Co., 41 Am. Rep. [Vt.] 843; Ger. Am. Bank v. Ins. Co., 8 Mo. App., 401; Barnes v. Ins. Co., 51 Me. 110; Dix v. Ins. Co., 22 Ill. 272; Plath v. Ins. Co., 23 Minn. 479, and cases; Edmonds v. Ins. Co., 1 Allen [Mass.] 311; Abbott v. Ins. Co., 30 Me. 414; Hicks v. Ins. Co., 32 N.W. 201 [Ia.]; Cuthberson v. Ins. Co., 2 S.E. [N. Car.] 258; Nedrow v. Ins. Co., 43 Iowa 24; Garver v. Ins. Co., 28 N.W. 555 [Ia.]; Ellis v. Ins. Co., 61 Iowa 577, 16 N.W. 744; Com. As. Co. v. Hocking, 2 Am. St. Rep. [Pa.] 571; Keystone Ben. Ass'n v. Norris, 115 Pa. 446, 8 A. 638, 2 Am. St. Rep. 572; Va. Ins. Co. v. Wells, 17 Ins. Law Jour. [Va.] 26; Cornett v. Ins. Co., 25 N.W. 673 [Ia.]; Phenix Ins. Co. v. Willis, 8 Am. St. Rep. [Tex.] 566; Livesey v. Omaha Hotel, 5 Neb. 64; Suggs v. Ins. Co., 9 S.W. [Tex.] 676; Vette v. Ins. Co., 30 F. 352 [Wis.]; Ins. Co. v. Brim, 12 N.E. 315 [Ind.].

Chas. Kilburn, and Chas. H. Tanner, contra, filed no brief.

OPINION

NORVAL, J.

This is a suit upon a policy of insurance against loss or damage by fire, lightning, tornado, and wind storms, to recover for the loss of a cow covered by the policy. There was judgment in the court below for the plaintiff, in the sum of $ 32.50 and costs.

The case, as made by the plaintiffs, was that on the 12th day of January, 1888, the cow was violently blown upon a barbed wire fence and killed. There is no conflict in the evidence, either as to the manner of the loss, or the amount of the damages. The insurance company contends that the plaintiff cannot recover because he has violated certain stipulations of the policy.

The policy was for the amount of $ 1,150, of which $ 450 was on dwelling, household furniture, beds and bedding, wearing apparel, and sewing machine; $ 300 was on horses and cattle, not exceeding $ 100 on any one horse, and not exceeding $ 30 on any one cow; and the balance of the risk was upon other personalty.

The policy upon which the action was brought provides among other things that "If there is or shall be other prior, concurrent, or subsequent insurance (whether valid or not) on said property, or any part thereof, without the company's consent hereon, or if said buildings or either of them is or shall become vacant or unoccupied, or if the hazard shall be increased in any way, or if the property or any part thereof shall be sold, conveyed, incumbered by mortgage or otherwise, or any change takes place in the title, use, occupation, or possession thereof whatever; or if any foreclosure proceedings shall be commenced; or if the interest of the insured in said property, or any part thereof, now is or shall become any other or less than a perfect legal title and ownership, free from all liens whatever, except as stated in writing hereon; or if the buildings or either of them stand on leased ground or land, of which the assured has not a perfect title; or if this policy shall be assigned without the written consent hereon, then and in every such case this policy shall be absolutely void."

One of the defenses presented by the answer is that the insured, in violation of the above condition of the policy, after the same was issued, but before the loss, and without the knowledge and consent of the company, executed and delivered two mortgages upon the farm, on which is situated the dwelling covered by the policy. On the trial the plaintiff in error offered these mortgages in evidence, which were excluded by the court. This ruling is assigned as error.

The precise question here presented was before the court in State Ins. Co. v. Schreck, 27 Neb. 527, 43 N.W. 340. It was there held that where an insurance policy covers a dwelling and various classes of personal property, describing them separately, and specifies different and separate amounts on the dwelling and each kind of personalty, the execution of a mortgage on the real estate, in violation of a condition against subsequent incumbrances on any of the property insured, is no defense to an action for the loss of the personalty not incumbered. The authorities cited in the brief of the defendant in error in that case, sustained the same doctrine. We are satisfied with the reasoning of the opinion, and the decision is adhered to.

The policy having specified separate and distinct amounts upon the different subjects of insurance, the contract is severable, and a breach of a condition of the policy against incumbrances could only affect that class of property which was covered by the incumbrance. The execution of the mortgages upon the lands therefore only avoided the policy so far as it covered the buildings, and did not in any manner affect the insurance upon the cattle.

The plaintiff in error, for the purpose of showing that the insured had violated the above provisions of the policy offered in evidence a chattel mortgage executed on January 18, 1887, by the defendant in error to P. H. Passey, administrator, covering several head of horses. The mortgage was ruled out by the court, and an exception was taken by the plaintiff in error. There is no claim that there had ever been any incumbrance during the life of the policy, upon the cow that was killed, or upon any of the cattle owned by the insured. The ruling of the trial court is within the decision in State Ins. Co. v. Schreck, supra. The policy in that case, like the one before us, was not upon specific personal property. There some of the personalty insured had been mortgaged subsequent to the execution of the policy. Chief Justice REESE in the opinion says: "Had the contract of insurance been upon specific personal property, it is possible that the defense presented would have been available. However, that question is not before us; but we are quite clear that the transfer of the legal title to the insured property, either by mortgage or sale, would avoid the policy so far only as that particular property was concerned, during the time of the existence of the title in the purchaser or mortgagee, and to that extent only could the sale or mortgaging of the property under the provisions of this policy be a successful defense."

No specific stock is described in the contract, but it simply specifies $ 300 on horses and cattle,...