Hanover Fire Ins. Co. v. Gustin

• Decision Date: 05 June 1894
• Parties: HANOVER FIRE INS. CO. v. GUSTIN.
• Court: Nebraska Supreme Court

40 Neb. 828

59 N.W. 375

HANOVER FIRE INS. CO.

v.GUSTIN.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

1. The statement in an application for the issuance of a policy of insurance on a planing mill that “a watchman is kept on the premises during the night, and at all other times when the works are not in operation or the workmen present,” should receive a reasonable construction, and therefore the mere temporary absence of such watchman within the time contemplated did not necessarily relieve the insurer from liability for loss caused by a fire which originated during such absence.

2. Where the insured was orally examined as to the loss by an agent of the insurer, whose duty it was to look after and adjust its losses, and such examination was by such agent reduced to writing, and by the assured subscribedand sworn to, in the belief that such statement was a satisfactory compliance with the requirement of proof of loss, the question whether or not the acts or language of such agent induced such belief, and excused the making of other proof with technical precision, was properly left to the jury for determination.

3. The provisions of chapter 48 of the Session Laws of 1889, empower the courts of this state, upon rendering judgment against an insurance company on any policy of insurance on real property, to allow plaintiff a reasonable sum as an attorney's fee, to be taxed as part of the costs of the case in which judgment is rendered.

Error to district court, Buffalo county; Hamer, Judge.

Action by A. J. Gustin against the Hanover Fire Insurance Company on a policy of insurance. Judgment for plaintiff, and defendant brings error. Affirmed.

Thos. D. Crane and Bartlett, Crane & Baldrige, for plaintiff in error.

Calkins & Pratt, for defendant in error.

RYAN, C.

With the final submission of this case there was submitted a motion of the defendant in error to strike out of the supplemental transcript the affidavits of Thomas B. Crane and H. M. St. Clair, for the reason that they are no part of the record. This motion must be sustained, for the affidavits appear to have been attached to a motion to vacate an order allowing attorney's fees to Messrs. Calkins & Pratt. Whether they were used on the hearing of this motion is left entirely to conjecture, for neither their purpose nor their use was ever shown by the bill of exceptions. They were therefore improperly made a part of the record.

The defendant in error sued the plaintiff in error in the district court of Buffalo county on a policy of insurance on planing-mill property in Kearney. There were $200 on engine, boiler, and tools, and $800 on planing mill and machinery. There were six policies of $1,000 each on the planing-mill property, exclusive of that upon which this suit was brought. It is apparently conceded that these other policies were settled satisfactorily. These settlements were more advantageous to the insurance companies concerned than the rate fixed by the jury as that upon which plaintiff in error must settle. This fact is referred to in argument, but it can have no bearing in favor of the plaintiff in error, for settlements are often, perhaps usually, made in consideration of concessions. The evidence justified a verdict in the sum of $775, and, as the plaintiff elected that the sum for which it was liable should be fixed in that way, it must accept this estimate as final. It would subserve no useful purpose to consider in detail the several errors alleged as to the introduction of testimony, either as respects its admission or rejection. In each ruling the action of the court was correct; indeed, no argument is made in the brief of plaintiff in error calling in question the correctness of any of these rulings. The instructions were given as follows: “(1) The burden of the proof is upon the plaintiff. Before he can recover, he must establish his case by a preponderance of the evidence. (2) If you find for the plaintiff, you should allow him only the actual damages sustained, if any, and no more; you can allow nothing by way of punishing the insurance company for failing to pay the loss sustained, if there was a loss. (3) If you find that the plaintiff sustained a loss by fire, and that the defendant is liable to pay a part of the same by reason of the insurance policy which was issued, you will be careful to assess against the defendant company its pro rata share of the actual loss sustained, not exceeding the limit of liability mentioned in the policy. (4) If you find from the evidence that the defendant's agent, shortly after the fire, made out and requested the plaintiff to sign a paper which he called a proof of loss, or which he induced the plaintiff to believe was a proof of loss, it will be considered that the defendant had knowledge of the loss, and no other or greater proof will be required, although the paper was not such a proof of loss as the policy contemplated.” The plaintiff in error asked no instructions, but contents itself with criticising in argument those given in the following very general language: “(5) The instructions given by the court on its own motion not only do not fairly present the issues, but are, in effect, strongly argumentative in favor of Gustin, and assumptive of his right to recover; (6) the instructions given by the court numbered two, three, and four are, whether read severally or together, very prejudicial to the company.” These propositions present no question with sufficient tangibility to require consideration.

The trial was begun with no defense pleaded of special importance, in view of the evidence afterwards adduced, except the failure to make proof of loss as provided by the terms of the policy sued on. This defense was presented by the answer in the following language: “(3) The defendant, further answering, said petition states and alleges that in and by said policy of insurance it was specially provided that in case of loss or damage under said policy the assured should give immediate notice thereof to the general agent of said company in the city of New York, and, as soon thereafter as possible, furnish proof of loss containing a particular account of said loss or damage, signed and sworn to by said assured and by the assured only (except in case of death, and then by the legal representatives), stating when and how the fire originated, the exact nature and title of the assured and of all others in the property, the cash value of each item thereof, and the amount of loss thereon, and setting forth a copy of the written part of the policy. And the defendant further alleges that, after said alleged loss, no notice was given by said assured to the general agent of said defendantas required by the terms of said policy, and that no proofs of loss containing a particular account of said loss or damage was furnished, as provided by the terms of said policy, and no proofs of any nature of said alleged loss, if any loss there was, was furnished to said company defendant as required by the terms of said policy.” There was no immediate notice given to the plaintiff in error in the formal manner required by the provisions of the aforesaid policy. The loss was on February 17, 1890. C. E. Babcock was examined as a witness in behalf of the insurance company, and testified that he was its special agent for the state of Nebraska; that his agent advised him of the loss by fire of the planing mill; that he went to Kearney, and saw Mr. Gustin on February 20, 1890; that witness said to Mr. Gustin that the policy said that witness was to examine Mr. Gustin about the fire, its origin, how he came by the property, where Mr. Gustin was during the fire, and other matters connected with the running of the mill; that Mr. Gustin told witness step by step,--in fact, told witness all about it; that witness wrote it out as it was told witness, and read it over to Mr. Gustin carefully, and that Mr. Gustin signed it and swore to it before a notary public by the name of Brown. Mr. Gustin's evidence was that Mr. Babcock called this paper a proof of loss. This Mr. Babcock denied. Frank Brown, the notary public before whom the statement was sworn to, testified that Mr. Gustin asked him to swear him to the paper, designating it as a proof of loss, and that this was done in the presence of Mr. Babcock. The evidence of Norris Brown, brother and business partner of Frank Brown, was to the same effect. So, also, was that of Mr. Gustin. This was denied by Mr. Babcock. This affidavit of A. J. Gustin was, in substance, that he purchased the property of Thomas A. King on September 20, 1889, the consideration being $5,500, and a farm in Holt county of 160 acres; that he paid the unearned premium on $6,000 on the mill building, boiler, engine, tools, and mill machinery pending on the mill, which premium amounted to $245. There were further details concerning the conditions and consideration upon which he acquired the property. Relative to the fire, he said that it...