Nebraska & Iowa Ins. Co. v. Christiensen

• Citation: 45 N.W. 924,29 Neb. 572
• Parties: NEBRASKA & IOWA INS. CO. v. JAMES CHRISTIENSEN
• Decision Date: 13 May 1890
• Court: Supreme Court of Nebraska

45 N.W. 924

29 Neb. 572

NEBRASKA & IOWA INS. CO. v. JAMES CHRISTIENSEN

Supreme Court of Nebraska

May 13, 1890

ERROR to the district court for Douglas county. Tried below before GROFF, J.

AFFIRMED.

Scott & Scott, for plaintiff in error, cited, as to increase of risk and knowledge of owner: Houghton v. Ins. Co., 8 Met. [Mass.], 114; Kelley v. Ins. Co., 97 Mass. 286; Lee v. Ins. Co., 3 Gray [Mass.], 592; May, Ins sec. 237; Diehl v. Ins. Co., 58 Pa. 413; Fire Assoc. v. Williamson, 26 Id., 196; Long v Beeker, 106 Id., 466; F. & M. Ins. Co. v Simmons, 30 Pa. 299; Duncan v. Ins. Co., 6 Wend. [N. Y.], 489; Appleby v. Ins. Co., 45 Barb. [N. Y.], 454; Williams v. Ins. Co., 57 N.Y. 274, and cases; Heneker v. Ins. Co., 14 U. C. C. P., 57; Harvey v. Ins. Co., 11 Id., 394; 1 Wood, Fire Ins., sec. 254, and cases cited; Indiana Ins. Co. v. Brehm, 88 Ind. 578; C. R. Ins. Co. v. Shrimp, 16 Ill.App. 248.

Charles B. Keller, contra, cited, on same point: N. E., etc., Ins. Co. v. Wetmore, 32 Ill. 245, and cases; U.S. etc., Co. v. Kimberly, 34 Md. 234; Schmidt v. Ins. Co., 41 Ill. 295; Merrill v. Ins. Co., 23 F. 245; Stanford v. Ins. Co., 12 Cush. [Mass.], 541; White v. Ins. Co., 8 Gray [Mass.], 566; Boardman v. Ins. Co., 8 Cush. [Mass.], 583; Heneker v. Assur. Co., 14 U. C. C. P., 57; Franklin Ins. Co. v. Gruver, 100 Pa. 266; Newman v. Ins. Co., 17 Minn. 98; Jefferson Ins. Co. v. Cotheal, 7 Wend. [N. Y.], 72; Newhall v. Ins. Co., 52 Me. 180; Hall v. Ins. Co., 6 Gray [Mass.], 185; Loehner v. Ins. Co., 17 Mo. 247; Lyon v. Ins. Co., 2 Rob. [La.], 247; Rafferty v. Ins. Co., 3 Harr. [N. J.], 480.

OPINION

NORVAL, J.

This suit is upon a policy of insurance. The answer upon which the case was tried in the lower court admits that the defendant is a corporation, that it issued the policy declared upon by the plaintiff, and denies all the other allegations of the petition. The answer also pleads a breach by the assured of the following conditions of the policy:

"1. The company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor shall be actually paid.

"2. In case the building, whether intended for occupancy by owner or tenant, be or becomes vacant or unoccupied, or cease to be operated or used for the purpose stated in this policy, unless permission therefor be indorsed in writing, then and from thenceforth so long as the same shall be unoccupied or cease to be operated, this policy shall cease and be of no force or effect.

"3. This policy shall be void and of no effect if, without permission therefor in writing hereon, any change take place in title, ownership, or possession (except by succession consequent upon the death of assured).

"4. This policy shall be void and of no effect if, without permission therefor in writing hereon, the risk be increased by any means within the control or knowledge of the assured."

The reply denies a breach of any of the conditions of the policy and alleges in substance: That prior to the issuing of the policy sued on the defendant had issued other policies to the plaintiff, for which the defendant had been in the habit of receiving premiums from time to time as suited the convenience of the plaintiff; that it was the custom of the defendant to issue policies to insurers in said company without requiring the payment of the premiums at the time; that when the policy was issued the defendant agreed that the premium might be paid at such reasonable time thereafter as might suit the convenience of the plaintiff; that thereafter, on the 8th day of July, 1885, the plaintiff paid to the defendant $ 9, part of said premium, and that the defendant at that time agreed to accept the balance at any time it should be convenient for the plaintiff to pay the same; that before the commencement of the suit he tendered to the company the balance of said premium, which it declined to accept; that the portion of the premium paid by the plaintiff was greater than the proportion of the time for which the premises had been insured under said policy before the destruction of the building by fire.

The cause was tried to a jury, and a verdict was returned for $ 587.17, being the full amount of the policy, with interest, less the unpaid premium. Numerous errors are assigned in the petition in error on the rulings of the trial court on the introduction of testimony, but, as they are not relied upon in the plaintiff in error's brief, they will not be considered here. The errors complained of consist in giving and refusing of instructions, and refusal to submit to the jury special interrogatories requested by the company.

The policy, which is the basis of the suit, was issued and delivered to the defendant on the 30th day of May, 1885, for the amount of $ 500 upon assured "one story house, frame, shingle roof, building occupied as saloon, situated on lot 12, block 77, South Omaha Stock Yards," and to run one year from May 28, 1885. The amount of premium agreed upon was $ 12.50. No part of it was paid when the policy was delivered, but a credit therefor was extended until such time as it should be convenient for the assured to pay the same, and that it was the custom of the company to extend credit for premiums and to send its collectors to collect the same; but that was not done in this case. On July 8, 1885, the assured called upon the plaintiff and paid $ 9 of the premium, and it was then agreed that the balance should be paid when it suited the convenience of the insured. The building was entirely destroyed by fire November 29, 1885, and at that time it exceeded in value the amount for which it was insured. Proof of loss was made by the plaintiff in accordance with the terms of the policy. When the fire occurred $ 3.50 of the premium remained unpaid, but after the loss it was tendered, which the company declined to accept. At the time the policy was issued the building was occupied as a saloon by Dug. Johnston, a tenant. Johnston, at his own expense, without the knowledge or consent of the plaintiff, in August or September, 1885, built an addition to the building, which addition, without plaintiff's knowledge or consent, was used for the purpose of prostitution. There is evidence tending to show that it was not used for that purpose at the time of the fire, nor during two or three weeks prior to the loss. The fire originated in a hotel building standing a short distance from the saloon, from which the fire was carried to the saloon, the addition being the last to catch fire and burn.

On the question of the waiver of the conditions of the policy, the court at the request of the plaintiff instructed the jury as follows:

"1. You are instructed that any condition or provision in a policy of insurance which avoids the policy, and which is placed there for the benefit of the insurance company, may be waived by the company, and such waiver may be either in expressed terms or by the conduct of the company.

"2. If you find from the evidence that the entire premium due upon the said policy of insurance had not been paid by the plaintiff to the defendant at the date of the fire, but that the mode of dealing and the conduct of said company, or its duly authorized agent, induced the plaintiff to believe that the prompt payment of the premium would not be insisted upon as provided by the policy, such conduct on the part of the company would be a waiver of the right to forfeit the policy on account of such non-payment of a portion of the premium, and would not prevent the plaintiff from recovering in this action, nor the fact that he neglected the same before the fire affected his right to recover, if you find from the evidence that no demand for payment was made upon him by the said company for said balance of premium.

"3. You are further instructed that if you find from the evidence that sufficient money had been paid in on the policy of insurance, which is the basis of this action, to carry the policy at short rates beyond the date of the fire, and pay the company for such time for the risk assured, and such sum was received and accepted by the company without objection, and that a credit was extended by said company to said plaintiff for the balance of said premium, and no demand was ever made upon the said plaintiff for the said balance, then the fact that the entire premium specified in the policy had not been paid at the date of the fire would not prevent the plaintiff from recovering in this action, but you should deduct from your verdict, if you find for the plaintiff, the amount of the unpaid premium, with interest from May 28, 1885, to said date of its tender, December 14, 1885."

That the conditions contained in a policy of insurance intended for the benefit of the company may be waived by it, is firmly settled by the decisions of this court; and the same is true as regards the terms of a policy relating to the payment of the premiums. (Phoenix Ins. Co. v. Lansing, 15 Neb 494, 20 N.W. 22; Schoeneman v. Ins. Co., 16 Neb. 404, 20 N.W. 284.) It is claimed that there is no evidence that the conduct of the company constituted a waiver. There is abundant evidence in the record that this company had often extended time to others for the payment of premiums; that the plaintiff had been given time by the defendant in which to pay premiums on other policies; that the policy in suit was delivered without payment of the premium, and that the company usually sent its collectors around to collect unpaid premiums, but had never demanded payment of the plaintiff. Again, long after the policy had been delivered, the defendant, without objection, received all but three dollars and a half of the amount agreed to be paid for carrying the risk for the year. The money thus paid was retained, and only...