Home Fire Ins. Co. v. Johansen

• Decision Date: 06 December 1899
• Citation: 80 N.W. 1047,59 Neb. 349
• Parties: HOME FIRE INS. CO. v. JOHANSEN.
• Court: Nebraska Supreme Court

59 Neb. 349

80 N.W. 1047

HOME FIRE INS. CO.

v.JOHANSEN.

Supreme Court of Nebraska.

Dec. 6, 1899.

Syllabus by the Court.

1. The burden of proof as to new matter pleaded by way of confession and avoidance of the allegations of an adversary's pleading is on the party setting forth such new matter.

2. A reply which refers in vague and general terms to the allegations of the answer should be construed as responding to the particular matters set forth in such answer.

3. A party, by pleading in avoidance of matter set forth in his adversary's pleading, concedes the truth of such matters in seeking to avoid their legal effect.

4. The giving of a mortgage on insured chattels in violation of a condition of the policy against incumbrances renders such policy void.

5. In such case the cancellation or discharge of the lien before loss occurs revives the contract.

6. And the burden of proving such cancellation of the lien is on the insured.

7. The determination of questions presented to this court in its review of the proceedings of an inferior tribunal becomes the law of the case, and, ordinarily, will not be re-examined in a subsequent review of the proceedings of the inferior tribunal on the second trial of the case.

Error to district court, Washington county; Powell, Judge.

Action by Charles Johansen against the Home Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.Byron G. Burbank, for plaintiff in error.

Dolezal, Cook & Cook, for defendant in error.

SULLIVAN, J.

Charles Johansen sued the Home Fire Insurance Company in the district court of Washington county to recover upon a fire policy. The cause was tried to a jury, and resulted in a verdict and judgment in favor of the plaintiff. The question for decision, presented in a variety of forms, is the sufficiency of the evidence to sustain the verdict. The policy forbade, under penalty of forfeiture, the mortgaging of the property insured. One of the defenses presented by the answer was “that, subsequent to the issuance of said policy of insurance, the plaintiff, in violation of the terms, stipulations, and warranties contained in said policy, incumbered by three chattel mortgages all the property described in said policy and damaged by said fire; such chattel mortgages being for the sums of $7,160, $7,165, and $1,805; all of which said mortgages were valid, subsisting liens on said property at the time of said fire.” The plaintiff replied, denying the averments of the answer not expressly admitted; denying that any of the chattels covered by the policy were incumbered when the policy was issued; and alleging “that at the time of the loss by fire set forth in plaintiff's petition all and singular the chattels covered by said policy of insurance set forth in plaintiff's petition were free from all mortgages, and were, prior thereto, released and discharged from the lien of all mortgages whatsoever; and said chattels, at the time of said fire, were unincumbered by any mortgage whatsoever.” The plaintiff, at the trial, produced witnesses to sustain the controverted averments of the petition, and rested. The defendant offered no evidence, and the cause was submitted to the jury without any proof touching the execution or release of the mortgages referred to in the pleadings. Counsel for the defendant contends that the giving of the mortgages as charged in the answer was admitted by the reply, and that, in the absence of any evidence upon the subject, the presumption is the property was still incumbered at the time of the fire. We think counsel is right. We see no escape from the conclusion that the plaintiff, in his reply, confessed that he had broken a vital condition of the policy. The company alleged that the insured chattels were mortgaged after the policy was issued, and that the mortgages were in force at the time of the fire. The plaintiff was called upon to meet this allegation. It was his duty to admit or deny it. Fairly construed, we think the reply was intended as a confession and avoidance of the new matter contained in the answer. It was evidently the intention of the pleader to admit the execution of the mortgages, and to show by way of avoidance that they were not liens on the property at the time of its destruction. It is true that the plaintiff does not refer in his pleading to any particular mortgage, but we must assume that the reply was designed to perform its proper office by responding fairly to the allegations of new matter contained in...