Home Fire Insurance Company of Omaha v. Hammang Brothers & Company

• Decision Date: 04 April 1895
• Docket Number: 5922
• Citation: 62 N.W. 883,44 Neb. 566
• Parties: HOME FIRE INSURANCE COMPANY OF OMAHA v. HAMMANG BROTHERS & COMPANY
• Court: Nebraska Supreme Court

62 N.W. 883

44 Neb. 566

HOME FIRE INSURANCE COMPANY OF OMAHA v. HAMMANG BROTHERS & COMPANY

No. 5922

Supreme Court of Nebraska

April 4, 1895

ERROR from the district court of Washington county. Tried below before SCOTT, J.

AFFIRMED.

Jacob Fawcett, for plaintiff in error:

Where a policy requires the furnishing of proofs of loss as a condition precedent to a right of recovery on the policy the proofs must be furnished. (German Ins. Co. v Fairbank, 32 Neb. 757.)

The defendants in error never furnished the plaintiff in error with a certificate under the hand and seal of the magistrate notary public, or commissioner of deeds nearest the place of the fire. There can therefore be no recovery. (Columbian Ins. Co. v. Lawrence, 2 Pet. [U. S.], 25; Leadbetter v. Etna Ins. Co., 13 Me. 265; Inman v. Western Fire Ins. Co., 12 Wend. [N. Y.], 452; Johnson v. Phoenix Ins. Co., 112 Mass. 49; Roumage v. Mechanics Fire Ins. Co., 1 Green [N. J. Law], 110; Protection Ins Co. v. Pherson, 5 Ind. 417; Noonan v. Hartford Fire Ins. Co., 21 Mo. 81; Cornell v. Hope Ins. Co., 3 Martin n. s. [La.], 223; Kerr v. British American Assurance Co., 32 U. C. Q. B., 569; Cayon v. Dwelling House Ins. Co., 32 N.W. [Wis.], 540; Morrow v. Waterloo County Mutual Fire Ins. Co., 39 U. C. Q. B., 441; Campbell v. American Popular Life Ins. Co., 1 McArthur [D. C.], 246; Wood, Insurance, secs. 416, 713; Williams v. Queens Ins. Co., 19 Ins. L. J. [Conn.], 26; Lane v. St. Paul Fire & Marine Ins. Co., 52 N.W. [Minn.], 649.)

The policy was void by reason of the additional insurance. (German Ins. Co. v. Heiduk, 30 Neb. 288; Cleaver v. Traders Ins. Co., 32 N.W. [Mich.], 662; England v. Westchester Fire Ins. Co., 51 N.W. [Wis.], 946; Johnson v. Dakota Fire & Marine Ins. Co., 45 N.W. [N. Dak.], 799; Wilkins v. State Ins. Co., 45 N.W. [Minn.], 2; Jennings v. Chenango County Mutual Ins. Co., 2 Denio [N. Y.], 75; Brown v. Cattaraugus County Mutual Ins. Co., 18 N.Y. 385; Chase v. Hamilton Ins. Co., 20 N.Y. 52; Western Assurance Co. v. Rector, 3 S.W. [Ky.], 415; McNierney v. Agricultural Ins. Co., 48 Hun [N. Y.], 244; Franklin Fire Ins. Co. v. Martin, 8 Ins. L. J. [N. Y.], 134; Smith v. Cash Mutual Fire Ins. Co., 24 Pa. 324; Loehner v. Home Mutual Ins. Co., 17 Mo. 248; Hartford Fire Ins. Co. v. Webster, 69 Ill. 392; Dewees v. Manhattan Ins. Co., 6 Vroom [N. J.], 366; Winneshiek Ins. Co. v. Holzgraffe, 53 Ill. 517; Ostrander, Fire Insurance, 72; Walker v. State Ins. Co., 26 P. [Kan.], 718; Herbst v. Lowe, 65 Wis. 316; Ripley v. AEtna Ins. Co., 30 N.Y. 136; Glendale Mfg. Co. v. Protection Ins. Co., 21 Conn. 37; Sheldon v. Hartford Fire Ins. Co., 22 Conn. 235; Barrett v. Union Mutual Fire Ins. Co., 7 Cush. [Mass.], 180; Insurance Co. v. Mowry, 96 U.S. 544; Smith v. Cash Mutual Fire Ins. Co., 24 Pa. 320; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 168; Higginson v. Dall, 13 Mass. 96; Whitney v. Haven, 13 Mass. 172; Weston v. Emes, 1 Taunt. [Eng.], 115; Swan v. Watertown Fire Ins. Co., 96 Pa. 42; Greenwood v. New York Life Ins. Co., 27 Mo. App., 411.)

W. S. Cook and D. Z. Mummert, contra:

The company, by sending its agent to adjust the loss, calling for bills and additional evidence, waived proofs of loss and certificate of notary. (Cannon v. Home Ins. Co. of New York, 53 Wis. 585; Brown v. State Ins. Co., 74 Iowa 428; Oshkosh Gas Light Co. v. Germania Fire Ins. Co., 71 Wis. 454; Zielke v. London Assurance Corporation, 64 Wis. 442; Green v. Des Moines Fire Ins. Co., 50 N.W. [Ia.], 558; Bach v. State Ins. Co., 64 Iowa 595; Merchants Ins. Co. v. Holthaus, 43 Mich. 423; Bromberg v. Minnesota Fire Association, 45 Minn. 318; Miller v. Hartford Fire Ins. Co., 70 Iowa 704; Harriman v. Queen Ins. Co., 49 Wis. 71; Commercial Union Assurance Co. v. Hocking, 115 Pa. 407; Union Ins. Co. v. Barwick, 36 Neb. 223; German-American Ins. Co. v. Barwick, 36 Neb. 223; Billings v. German Ins. Co., 34 Neb. 502.)

Knowledge by the agent of the existence of the additional insurance is knowledge of the plaintiff, and the failure to make objections is a complete waiver of any objection that the additional insurance was not indorsed upon the policy. (Copeland v. Dwelling House Ins. Co., 43 N.W. [Mich.], 991; Tubbs v. Dwelling House Ins. Co., 48 N.W. [Mich.], 296; Kitchen v. Hartford Fire Ins. Co., 23 N.W. [Mich.], 616; Brandup v. St. Paul Fire & Marine Ins. Co., 7 N.W. [Minn.], 735; Bennett v. Council Bluffs Ins. Co., 31 N.W. [Ia.], 948; Cleaver v. Traders Ins. Co., 39 N.W. [Mich.], 571; Barnes v. Hekla Fire Ins. Co., 39 N.W. [Ia.], 122; Hamilton v. Home Ins. Co., 7 S.W. [Mo.], 261; Kausel v. Minnesota Farmers Mutual Fire Association, 16 N.W. [Minn.], 430; Reynolds v. Iowa & Nebraska Ins. Co., 46 N.W. [Ia.], 659; Crouse v. Hartford Fire Ins. Co., 44 N.W. [Mich.], 496; Gristock v. Royal Ins. Co., 47 N.W. [Mich.], 549; Reiner v. Dwelling House Ins. Co., 42 N.W. [Wis.], 208; Donnelly v. Cedar Rapids Ins. Co., 28 N.W. [Ia.], 607; Temmink v. Metropolitan Life Ins. Co., 40 N.W. [Mich.], 469; Eggleston v. Council Bluffs Ins. Co., 21 N.W. [Ia.], 652; Brumfield v. Union Ins. Co., 7 S.W. [Ky.], 893; Michigan Shingle Co. v. State Investment & Ins. Co., 53 N.W. [Mich.], 545; Ins. Co. of North America v. McLimans, 28 Neb. 653.)

W. C. Walton, also for defendant in error.

RAGAN, C. NORVAL, C. J., concurring in the result.

OPINION

The facts are stated by the commissioner.

RAGAN, C.

Hammang Bros. & Co. brought this suit in the district court of Washington county against the Home Fire Insurance Company of Omaha, Nebraska, (hereinafter called the "Insurance Company,") to recover the value of certain merchandise which they alleged they owned, which had been insured against loss or damage by fire by the Insurance Company, and which merchandise had been destroyed by fire. Hammang Bros. & Co. had a verdict and judgment, and the Insurance Company brings the same here for review. There is no contention here but that the policy sued upon was issued, that the premium was paid, and that the property was destroyed by fire; nor is there any claim made that the actual loss sustained by Hammang Bros. & Co. was not greater than the amount of the insurance; nor is it claimed that the fire resulted from any fraud or neglect on the part of the insured. To reverse the judgment of the district court counsel for the Insurance Company has argued four points here, which we notice as follows:

1. One of the defenses the Insurance Company interposed to this action in the district court was that the insured did not furnish to the Insurance Company proofs of loss as required by the insurance contract. The policy provided: "When a fire has occurred, damaging the property hereby insured, the assured shall give immediate notice and render a particular account of such loss, signed and sworn to by them; if there is other insurance, shall give a detailed account of same, with copies of the written portions of all policies; shall also give the actual cash value of the property, their interest therein, the interest of all other parties therein, if any, giving their names; the amount of the loss or damage; for what purpose and by whom the building insured or containing the property insured, and the several parts thereof, were used; when and how the fire originated; and an itemized estimate of value of the property destroyed." The fire occurred on the 31st day of October, 1890. On the 25th day of November, 1890, the assured made a statement in writing, swore to the same before a justice of the peace, and transmitted it to the Insurance Company. This written statement or proof of loss set out that a fire had occurred on the 31st of October, 1890, destroying and injuring the property covered by the policy in suit; that the date of such policy was the 14th of June, 1890; that the policy had been issued to Hammang Bros. & Co.; that the amount of the insurance was $ 1,500; that the property damaged and destroyed consisted of hardware, stoves, tinware, and other articles usually kept in a hardware store; that the loss was payable to Hammang Bros. & Co.; that the Omaha Fire Insurance Company of Omaha, Nebraska, had also a policy of $ 1,000 on the destroyed property; that the goods saved were well protected; that an inventory was being made of the goods saved; that the books of the firm of Hammang Bros. & Co. had been saved; that the fire which destroyed the insured property was communicated to the building in which it was situate from a fire in a livery barn across an alley west of the store of Hammang Bros. & Co.; that an inventory of the stock of Hammang Bros. & Co. had been taken on January 1, 1890; that the condition of the insured property saved was fairly good; and that there had been no change in the risk or its external exposures since the policy was issued. It will be seen that this proof of loss furnished by Hammang Bros. & Co. to the Insurance Company is not a strict compliance with the requirements of the policy, but we think it is a substantial compliance with that provision of the insurance contract. Technical accuracy in making out a proof of loss is not essential. The proof of loss is sufficient if it shows upon its face that the insured made an honest effort to comply with the requirement of the insurance contract. (Continental Ins. Co. v. Lippold, 3 Neb. 391; German-American Ins. Co. v. Etherton, 25 Neb. 505, 41 N.W. 406; Hanover Fire Ins. Co. v. Gustin, 40 Neb. 828, 59 N.W. 375.)

The insured property was situate in the town of Arlington, and the Insurance Company was domiciled in the city of Omaha. Immediately after the receipt by the Insurance Company of the proof of loss hereinbefore mentioned the Insurance Company sent to Arlington its adjuster. This adjuster remained there several days inquiring into the circumstances of the fire and the...