Oakland Home Fire Ins. Co. v. Bank of Commerce of Grand Island
| Decision Date | 18 March 1896 |
| Citation | 47 Neb. 717,66 N.W. 646 |
| Parties | OAKLAND HOME FIRE INS. CO. v. BANK OF COMMERCE OF GRAND ISLAND. |
| Court | Nebraska Supreme Court |
1. In an action upon an insurance policy, one defense being that the insurer had parted with all interest in the insured “property before the policy was issued,” the question whether the insured was, at the time the policy issued, the owner of the property, was, on conflicting evidence, properly submitted to the jury. Rochester Loan & Banking Co. v. Liberty Ins. Co., 62 N. W. 877, 44 Neb. 537, followed.
2. The policy was sued on by the Bank of Commerce, a mortgagee of the premises. It was issued to the owner, J., and contained provisions whereunder a transfer of the property or an assignment of the policy, without consent of the insurer, avoided the policy. Before the loss, J. had conveyed the premises to B., and assigned the policy to him. The insurer pleaded this conveyance and assignment without consent of the insurer as a defense. Attached to the policy was the following: “Loss, if any, under this policy, payable to the Bank of Commerce or its assigns, as its mortgage interest may then appear.” In the body of the policy was the following: “If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee, or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached or appended hereto.” Held: (a) That these two clauses should be construed together; (b) that the clause in the body of the policy rendered conditions expressed in the policy applicable to the interest of a mortgagee having rights thereunder only where there was written upon, attached, or appended to the policy some provision or condition rendering such conditions of the policy applicable, and defining the manner of their applicability; (c) that, the clause attached to the policy containing no such provision or condition, the mortgagee was entitled to recovery, notwithstanding conditions in the policy which might defeat a recovery by the owner.
Error to district court, Hall county; Harrison, Judge.
Action by the Bank of Commerce of Grand Island against the Oakland Home Fire Insurance Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.William H. Platt and Ralph Platt, for plaintiff in error.
W. H. Thompson and W. A. Prince, for defendant in error.
This was an action on a policy of fire insurance written in favor of J. Nelson Jones, and having attached an instrument, signed by the agents issuing the policy, the essential part of which is as follows: “Loss, if any, under this policy, payable to the Bank of Commerce, or its assigns, as its mortgage interest may then appear.” The policy and the slip attached both bore date October 17, 1889, and were both executed on that day. The policy ran for five years from that date. Not far from the time when the policy was issued, the premises insured were conveyed to one Brownfield, and an assignment to Brownfield, signed by Jones, appears on the policy. This bears two dates,--October 17, 1889, and December 12, 1890. No written approval of this assignment appears on the policy. The Bank of Commerce was the owner of mortgages on the premises to the full amount of the policy. A total loss occurred October 19, 1890. In the district court there were a verdict and judgment for the plaintiff, which is defendant in error, to reverse which the insurance company brings the case here.
The contentions of the insurance company, based on proper assignments of error, are as follows: First. That the conveyance to Brownfield was prior to the issuance of the policy, and that, therefore, Jones had no insurable interest, and the policy never took effect. Second. That, under the conditions of the policy, it was avoided by the attempted assignment thereof before loss, without the consent of the company. Third. That what is styled the “loss payable clause,” attached to the policy, was merely a direction as to who should receive the proceeds in case of loss; that it was subject to all the conditions of the policy, and the policy not being available to Jones, because...
To continue reading
Request your trial
-
State Securities Co. v. Federated Mut. Imp. & Hard. Ins. Co., Civ. No. 30-L.
...apparent, if unreal, support to plaintiff's further construction of form 111 is true. And Oakland Home Insurance Company v. Bank of Commerce of Grand Island, 47 Neb. 717, 66 N.W. 646, 36 L.R.A. 673 is relied upon for such support. But, in the course of that opinion, its writer adverted to a......
-
Bacot v. Phenix Ins. Co. of Brooklyn
... ... Insurance Co. v. Holmes, 75 Miss. 390; Home Ins ... Co. v. Gibson, 17 So. 13; Georgia ... 1906, § 2596, read into every policy. Oakland ... Insurance Co. v. Bank, 58 Am. St. Rep. 667 ... v ... Porter, 33 S.E. 473; Hanover Fire Insurance Co. v ... National, etc., Bank, 34 ... Co. v. Bank of ... Commerce, 47 Neb. 717, 66 N.W. 646, 36 L R. A. 673, 58 ... ...
-
Baker v. Fargo Building And Loan Association, a Corp.
... ... loss payable clause in a fire insurance policy is a condition ... and not a venant. St. Paul F. & M. Ins. Co. v ... Upton, 2 N.D. 229, 50 N.W. 702; ... Lyons, 202 N.Y.S. 879; ... Home Ins. Co. v. Union Trust Co. (R.I.) 100 A. 1010, ... Johnson-Sampson & Co. v. Ft. Worth State Bank (Tex.) ... 244 S.W. 657; Farnsworth v. Riverton ... 576 and many cases cited. Oakland Home F ... Ins. Co. v. Bank of Commerce, 47 ... ...
-
Firemen's Insurance Co. v. Hays
... ... value of a fire insurance policy, and statutory penalty of $ ... loss. [159 Ark. 168] Citizens' Fire Ins. Co. v ... Lord, 100 Ark. 212, 139 S.W. 1114; ... ...