German Mut. Fire Ins. Co. v. Palmer

• Decision Date: 19 November 1902
• Citation: 92 N.W. 624,3 Neb. [Unof.] 688
• Parties: GERMAN MUT. FIRE INS. CO. v. PALMER.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 688

92 N.W. 624

GERMAN MUT. FIRE INS. CO.

v.PALMER.

Supreme Court of Nebraska.

Nov. 19, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Frontier county; Norris, Judge.

“Not to be officially reported.”

Action by William E. Palmer against the German Mutual Fire Insurance Company. Judgment for plaintiff. Defendant brings error. Affirmed.F. P. Olmstead, for plaintiff in error.

James L. White, for defendant in error.

POUND, C.

We were informed by counsel for defendant in error that upon reading the record we should find the plaintiff in error could not maintain this proceeding. Reference was made, doubtless, to the omission to assign the order overruling the motion for a new trial as error. The errors assigned are all such as are required to be raised in the district court by such a motion, and, unless the action of that court upon the motion is assigned as error, we are not called upon to review them. Gandy v. Cummins (Neb.) 89 N. W. 777;Achenbach v. Pollock (Neb.) 90 N. W. 304.

It may be said, however, that plaintiff in error relies chiefly upon Insurance Co. v. Heiduk, 30 Neb. 288, 46 N. W. 481, 27 Am. St. Rep. 402, and Northern Assur. Co. v. Grand View Bldg. Ass'n, 183 U. S. 308, 22 Sup. Ct. 133, 46 L. Ed. 313, and contends that notice to the agent of an insurer that additional insurance is held does not affect the insurer, unless the agent has power to waive the forfeiture, and that adjustment of a loss by an authorized adjuster will not operate as a waiver, unless special authority to make the waiver is established. But Insurance Co. v. Heiduk has been modified considerably by more recent decisions. Hunt v. Insurance Co. (Neb.) 92 N. W. 921;Insurance Co. v. Landfare (Neb.) 88 N. W. 779. And, while we entertain the highest respect for the distinguished tribunal which decided Northern Assur. Co. v. Grand View Bldg. Ass'n, its adjudications upon general questions of law are not binding upon this court, and do not require us to overturn a well-settled and long-established course of decision therein.

The other point is determined in Insurance Co. v. Gotthelf, 35 Neb. 351, 53 N. W. 137. If the facts were such as to entitle the insurer to insist upon a forfeiture, if it chose, any act thereafter, with knowledge or notice thereof, inconsistent with reliance upon the forfeiture, would be a waiver. Hunt v. Insurance Co., supra, and cases cited.

We recommend that the judgment be affirmed.

OLDHAM, C.,...