Krug Park Amusement Co. v. New York Underwriters Ins. Co.
| Decision Date | 31 May 1935 |
| Docket Number | 29024. |
| Citation | 261 N.W. 364,129 Neb. 239 |
| Parties | KRUG PARK AMUSEMENT CO. ET AL. v. NEW YORK UNDERWRITERS' INS. CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Sections 44-213 and 44-307, Comp. St. 1929, construed, and held :
(a) That any agent, solicitor or broker who shall solicit an application for insurance of any kind, or who shall with authority receive any money on any contract of insurance or any renewal thereof, or who shall make or cause to be made any contract of insurance for or on account of any insurance company, shall, in any controversy between the insured or his beneficiary and the company issuing any policy upon such application, be regarded as representing the company and not the insured, and shall be deemed to all intents and purposes an agent of such company.
(b) That such statutes do not define the scope of such agency except when the agent is performing or attempting to perform one or more of the acts set forth therein, to wit, soliciting an application for insurance, collecting premiums, or making a contract for insurance.
(c) When the agent performs or attempts to perform any of said acts the statutes apply, and the insurance company issuing any policy as a result thereof is bound by all knowledge the agent had regarding the circumstances and situation of the assured and the property which is the subject of the insurance, and all material facts known to the agent affecting the issuance of such policy.
(d) When the policy is issued and delivered, knowledge by the agent of any facts or occurrences regarding the policy and subject of insurance thereafter occurring are not imputed to the insurance company.
(e) After a policy is issued and delivered, the authority of the agent with relation thereto is to be determined by his contract with the insurance company and such apparent authority as may be implied from his conduct of the company's business with its knowledge and consent, and not by the statute, unless he attempts to perform one or more of the acts described in the statute.
(f) A soliciting agent or broker having no authority to issue policies or change or waive any of its terms who undertakes to procure a transfer of the policy, is the agent of the insured, and the company is not bound by any knowledge he may have of a change of title of the insured property until it has notice thereof. The mere obtaining of a transfer of the policy is not one of those acts mentioned in the statutes as operating to enlarge the scope of the agency.
2. The delivery of possession of personal property by a lessee to the lessor to be held and managed as security for delinquent rent until paid does not operate to transfer the title to said property, but is in the nature of a pledge; and delivery of possession of leased real estate for the same purpose will not terminate the lease, unless surrender of the lease is intended by the parties.
3. Termination of a lease of land, whereby title to the buildings and fixtures belonging to lessee becomes the property of the landlord, and a transfer of title to personal property, without notice to the insurer, are such changes in the title as will void a policy of insurance on the property containing a provision to that effect.
4. " The owner of a policy of insurance, who has parted with the title to the premises, cannot assign the policy after a fire, and without the knowledge and consent of the insurance company which issued the policy, so as to make it liable to a third person for the loss." Stephenson v. Germania Fire Ins. Co., 100 Neb. 456 160 N.W. 962, L.R.A. 1917D, 307.
Appeal from District Court, Douglas County; W. G. Hastings, Judge.
Action by the Krug Park Amusement Company and others against the New York Underwriters Insurance Company. From an adverse judgment, plaintiffs appeal.
Judgment reversed, and action dismissed.
Wells, Martin, Lane & Offutt, of Omaha, for appellants.
Ziegler & Dunn, of Omaha, for appellee.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, PAINE, and CARTER, JJ., and REDICK, District Judge.
This is an appeal by the defendant, New York Underwriters Insurance Company, from a decree in equity in the district court for Douglas county, reforming an insurance policy issued by the defendant, and awarding judgment to Frank Crawford, as trustee, substitute for the First National Bank.
Plaintiffs in their amended petition allege that on the 21st day of May, 1932, the defendant executed and delivered its policy of insurance whereby it insured against loss by fire certain property, described therein, of the Park Bathing Company, a corporation, for the term of one year, said property consisting of towels and bathing suits used by said company in its business; that on or about September 1, 1932, the bathing company, being largely indebted to plaintiff, Krug Park Amusement Company (hereafter referred to as the park company or plaintiff,) as rent for the premises where said personal property described in the policy was located and used, in part payment of its rental indebtedness, transferred all of its right, title and interests in and to said personal property to said plaintiff, and continuously thereafter, up to and including the time of the fire hereinafter mentioned, plaintiff was the owner of said property so insured, and that at all said times said property was in possession and control of the plaintiff; that at the time said policy was issued, and at all times, the insured property was in the building located on property leased by the bathing company from plaintiff and used in connection therewith, and said bathing company had surrendered the use and occupancy of said premises and said personal property to plaintiff to be held and used as security for the rent indebtedness of the bathing company to plaintiff until such time as said bathing company might be able to pay said indebtedness; that plaintiff was authorized to keep said property insured for the protection of the interests of both parties, and that the agent of said defendant who contracted for and issued said policy and received the premiums thereon was informed, at the time of the issuance of said policy, of the aforesaid arrangement between plaintiffs and the bathing company; that on September 1, 1932, in an action in forcible entry and detainer, plaintiff recovered judgment against the bathing company for restitution of the leased premises, and that since the 2d or 3d day of September, 1932, plaintiff has been the sole owner and in exclusive possession of said personal property, which was used as a part of the equipment of said bath house and for the purpose for which same was used at the time said policy was issued.
Plaintiffs further allege that on the 2d or 3d day of September, and again on September 26, 1932, after plaintiffs had become the owner of said property, plaintiffs applied to Allan A. Tukey, Inc., who was the authorized agent of said defendant to act for said defendant in the premises and who was in possession of the policy, for a transfer of said policy from the name of the Park Bathing Company to that of the park company, and that said agent agreed to make said transfer and deliver said policy so changed and transferred, said transfer to be effective from the 2d or 3d day of September, 1932, and be binding on said defendant for the remainder of said period of one year from September 1, 1932; that said defendant, by oversight and mistake, neglected to make said changes as agreed upon and to change said policy from bathing company to plaintiff, without the knowledge or consent of the plaintiff; that on September 27, 1932, the property covered by said policy was totally destroyed by fire, whereby plaintiff sustained a loss of $7,800. The petition then alleges that proofs of loss were furnished to and accepted by de fendant, and said loss had been adjusted by an adjuster of the defendant; that in July, 1932, the park company executed a trust deed to the First National Company to secure a bond issue of the park company in the sum of $65,000, in which the park company agreed to keep the property described in said trust deed insured against fire for at least 60 per cent. of the value thereof, for the benefit of said trustee; that by oversight and mistake the park company failed to have attached to said insurance policy a rider as provided in said trust deed making any loss payable to the trustee, and that it was the intent and purpose of the park company and said defendant, through its agent aforesaid, to attach such rider to said policy.
As a second cause of action, plaintiff alleges that on November 29, 1932, the bathing company transferred to the park company all its right, title and interest, if any, in and to the above described insurance policy and to all sums due thereunder on account of said fire loss. Plaintiff prayed that the policy be reformed so as to make the Krug Park Amusement Company the assured therein, and to provide that the loss should be first payable to the trustee as its interest may appear, and for a decree in favor of plaintiffs in the sum of $2,500.
The defendant moved to require plaintiffs to elect between the causes of action set forth in the petition, which motion was overruled. Defendant then demurred to the petition on several grounds, which demurrer was overruled. Defendant then answered and admitted the incorporation of all the parties and the issuance of the policy, and admitted that on or before September 1, 1932, the Park Bathing Company transferred all its right, title and interest in the insured property to the park company, and that said park company was the sole owner and in possession of said property at the time of the loss; admitted that the fire occurred about September...
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