Home Fire Insurance Company of Omaha v. W. Bernstein

• Decision Date: 09 June 1898
• Docket Number: 8174
• Citation: 75 N.W. 839,55 Neb. 260
• Parties: HOME FIRE INSURANCE COMPANY OF OMAHA v. W. BERNSTEIN
• Court: Nebraska Supreme Court

75 N.W. 839

55 Neb. 260

HOME FIRE INSURANCE COMPANY OF OMAHA v. W. BERNSTEIN

No. 8174

Supreme Court of Nebraska

June 9, 1898

ERROR from the district court of York county. Tried below before BATES, J. Reversed.

REVERSED AND REMANDED.

B. G Burbank, for plaintiff in error:

The procuring of additional insurance subsequent to the issuance of the policy rendered it void. (Union Mutual Life Ins Co. v. Mowry, 96 U.S. 544; Walton v. Agricultural Ins. Co., 116 N.Y. 317; Kimball v. AEtna Ins. Co., 9 Allen [Mass.] 540; Eagle Fire Co. v. Globe Loan & Trust Co., 44 Neb. 381; German Ins. Co. v Heiduk, 30 Neb. 288; Burlington Ins. Co. v. Campbell, 42 Neb. 208; Cleaver v. Traders Ins. Co., 32 N.W. 660 [Mich.], 39 N.W. 571 [Mich.]; American Ins. Co. v. Neiberger, 74 Mo. 173; Swan v. Watertown Fire Ins. Co., 96 Pa. St. 43; New York Life Ins. Co. v. Fletcher, 117 U.S. 519; Richardson v. Maine Ins. Co., 46 Me. 394; Johnson v. Dakota Fire & Marine Ins. Co., 45 N.W. [N. Dak.] 799; Hankins v. Rockford Ins. Co., 35 N.W. 34 [Wis.]; Brown v. Massachusetts Mutual Life Ins. Co., 59 N.H. 307; Gould v. Dwelling-House Ins. Co., 51 N.W. 455 [Mich.]; Herbst v. Lowe, 65 Wis. 321; Quinlan v. Providence-Washington Ins. Co., 31 N.E. [N. Y.] 31.)

The execution of the chattel mortgages rendered the entire policy void. (Agricultural Ins. Co. v. Morrow, 43 Neb. 788; Lee v. Agricultural Ins. Co., 44 N.W. 683 [Ia.]; Koontz v. Hannibal Savings & Ins. Co., 42 Mo. 126; Holloway v. Dwelling-House Ins. Co., 21 Ins. L. J. [Mo.] 379.)

Jacob Fawcett, also for plaintiff in error.

N. V. Harlan, contra:

Knowledge on the part of an agent of an insurance company, of facts that render the contract voidable at the insurer's option, is knowledge of the company. (Eagle Fire Ins. Co. v. Globe Loan & Trust Co., 44 Neb. 381; Gans v. St. Paul Fire & Marine Ins. Co., 43 Wis. 108; Home Fire Ins. Co. v. Hammang, 44 Neb. 566.)

An agent of an insurance company may verbally waive the conditions of a policy of insurance, though the policy provides that conditions can only be waived by writing indorsed thereon. (Eagle Fire Ins. Co. v. Globe Loan & Trust Co., 44 Neb. 381; Hughes v. Insurance Co. of North America, 40 Neb. 626; Burlington Ins. Co. v. Rivers, 28 S.W. 453; Phenix Ins. Co. of Brooklyn v. Covey, 41 Neb. 724.)

The incumbering of a part of a number of chattels, where the property can be distinguished and separated, does not render the policy void as to the unincumbered portion. (State Ins. Co. v. Schreck, 27 Neb. 527; Merrill v. Agricultural Ins. Co., 73 N.Y. 452; Knowles v. American Ins. Co., 21 N.Y.S. 50; Phoenix Ins. Co. v. Lorenz, 29 N.E. 604 [Ind.].)

OPINION

The opinion contains a statement of the case.

HARRISON, C. J.

Of date May 1, 1893, there was countersigned by the agents of the plaintiff 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, 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 assured now has, or shall hereafter have, make, or procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy; or if the property now is, or shall become during the term of this policy, incumbered by mortgage or otherwise;" and that the defendant in error had violated each of the foregoing by the procurement of additional insurance on the property, and had incumbered the same by the execution and delivery to designated parties of chattel mortgages thereon. In the reply it was asserted that of the additional insurance the agents of the company had notice prior to the time of the destruction of the property. In regard to the chattel mortgages it was admitted that they were executed and delivered, but it was pleaded that they were of only a part of the property, of which there was sufficient remaining unincumbered to amount in value to more than the sum expressed in the contract of insurance. From a judgment in the county court there was an appeal to the district court, wherein the pleadings were the same as had been filed in the county court. A jury was waived and a trial resulted in a judgment against the company.

In error proceedings for the company it is urged that the policy was avoided by the additional insurance on the property which was obtained by defendant in error. This is met for the defendant in error by the fact which appeared in evidence that the agents of the company at York had notice of the additional insurance. Of this branch of the argument it must be said that the condition of the policy relative to other insurance, the manner of issuance of policies which was by the local agents...