Home Fire Ins. Co. v. Bernstein

• Decision Date: 09 June 1898
• Citation: 55 Neb. 260,75 N.W. 839
• Parties: HOME FIRE INS. CO. v. BERNSTEIN.
• Court: Nebraska Supreme Court

55 Neb. 260

75 N.W. 839

HOME FIRE INS. CO.

v.BERNSTEIN.

Supreme Court of Nebraska.

June 9, 1898.

Syllabus by the Court.

1. Knowledge on the part of an agent of an insurance company, authorized to countersign and issue its policies, of facts which render the contract voidable at the insurer's option, is knowledge of the company; and of such facts is that additional insurance has been obtained contrary to an expressed condition of the contract. Gans v. Insurance Co., 43 Wis. 108, and Eagle Fire Ins. Co. of New York v. Globe Loan & Trust Co., 62 N. W. 895, 44 Neb. 380, followed.

2. A policy of insurance, in which the sum thereof is stated in the aggregate, but further expressed in a specific amount on each several designated portions of the insured property, is not an entire and indivisible contract; but as to each division of the property it is entire, though there may be included in a division several articles.

3. A condition or provision of such a policy will not be construed as applicable to the property considered as a whole, but as operative and of force relative to each separated portion or division thereof.

4. If, of several articles included in one of the divisions of property in such a policy, and as to which the amount for which the several articles are insured are stated in gross, and not in any manner specifically, any are incumbered by mortgage, it is violative of a condition of the contract wherein it is provided: “This entire policy, unless otherwise provided by an agreement indorsed hereon or added hereto, shall be void * * * if the property now is, or shall become during the term of the policy, incumbered by mortgage or otherwise;” and such violation is effective ground of defense of the company in an action on the policy for a loss by fire of the said articles, or some of them.

Error to district court, York county; Bates, Judge.

Action by W. Bernstein against the Home Fire Insurance Company. From a judgment of the county court there was an appeal to the district court, where judgment was rendered for plaintiff. Defendant brings error. Reversed.

J. Fawcett and B. G. Burbank, for plaintiff in error.

N. V. Harlan, for defendant in error.

HARRISON, C. J.

Of date May 1, 1893, there was countersigned by the agent of the plaintiff in error at York, and issued to defendant in error, a policy of insurance against loss by fire, which, in respect to consideration, time of existence of the contract, and the location and description of the property insured, was, in terms, as follows: “In consideration of nine dollars premium, and the stipulations herein named, does insure W. Bernstein, for the term of one year from the first day of May, 1893, at noon, to the first day of May, 1894, at noon, against all direct loss or damage by fire except as hereinafter provided, to an amount not exceeding six hundred dollars, to the following described property while located and contained as described herein, and not elsewhere, to wit: $25 on his one-story frame, shingle-roof barn, $25 on his carriage and harness contained therein, $550 on his stock of harness, saddles, collars, fly nets, whips, leather in stock, harness, hardware, consisting of buckles and iron furnishings for harness, and all merchandise usually kept for sale in a general harness store; all while contained in a one-story frame, shingle-roof building, situated on lot one (1), block 44, New York, now city of York, Nebraska.” In an action instituted for defendant in error in the county court of York county it was alleged that on March 1, 1894, the insured property, except the barn and carriage and harness, was destroyed by fire, and of the payment, to which the company by its contract was obligated, there had been a refusal and failure on its part. In the answer filed for the company it was pleaded, among other defenses, that of the conditions and restrictions of the policy it was provided: “This entire policy, unless otherwise provided by an agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter have, make, or procure, any other contract of insurance,...