Omaha Fire Ins. Co. v. Thompson

• Decision Date: 03 February 1897
• Citation: 50 Neb. 580,70 N.W. 30
• Parties: OMAHA FIRE INS. CO. v. THOMPSON ET AL.
• Court: Nebraska Supreme Court

50 Neb. 580

70 N.W. 30

OMAHA FIRE INS. CO.

v.THOMPSON ET AL.

Supreme Court of Nebraska.

Feb. 3, 1897.

Syllabus by the Court.

1. The power of a court of equity to obtain the verdict of a jury on any issue or issues is preserved by the Code, and in actions equitable in their nature the trial court may, in its discretion, impanel a jury, and submit to its determination such issues of fact as it deems expedient.

2. When such a course is taken, the verdict is at most a determination of the issues of fact submitted. The judgment need not strictly conform thereto, but the court may, on determining the other issues, enter such judgment as the whole case demands.

3. The filing of a claim for a mechanic's lien does not in itself establish such lien, even prima facie. It is merely the performance of a condition essential to consummate the lien.

4. Therefore, in an action on a policy of insurance, one of the defenses being that the insured had permitted the property to become incumbered, contrary to a provision in the policy, it was not error to exclude from evidence the record of a claim for a mechanic's lien, no facts being offered to establish the substantive facts creating such lien.

5. A policy of insurance contained the following: “It is agreed that, if any false statements are made in said application, this policy shall be void; * * * or if the property be sold or transferred or incumbered, or upon the commencement of foreclosure proceedings, or in case any change shall take place in the title, possession, or interest of the assured in the above-mentioned property, or if the assured shall not be the sole and unconditional owner in fee of said property, * * * then, in each and every one of the above cases, this policy shall be null and void.” It did not appear that any application had been made or required, or that any representations had been made with regard to the title. Held, that the existence of a chattel mortgage on a part of the property at the time the policy was written did not, under the clause quoted, avoid the policy.

6. A chattel mortgage in this state creates merely a lien, and does not pass title to the mortgagee. Musser v. King, 59 N. W. 744, 40 Neb. 892, followed.

7. The voluntary execution by the insured of a bill of sale of a portion of the property, without consideration, without delivery to the vendee, without the vendee's knowledge, without any prior contract, and without change in possession, does not create such a change in interest as to avoid the policy.

8. To an action on a policy of insurance the defendant pleaded that, after the loss, it had made a settlement with the insured whereby it agreed to pay a certain sum in 60 days, and that, relying on such settlement, it had accepted orders of the insured in favor of third persons for a portion of the amount, and had admitted indebtedness in garnishment proceedings which resulted in a judgment against it for another portion, the aggregate amount assumed being less than the amount of the settlement. It was not alleged that these obligations had been paid. Held, that this neither operated as an accord and satisfaction, nor did it estop the plaintiff from rescinding the agreement on the ground of fraud.

9. To such answer the plaintiff replied, denying the settlement pleaded, and then affirmatively alleging that he had agreed to accept the sum of money named on condition that it be paid in four days. Held that, under these pleadings, the burden was on the defendant to establish the settlement as it alleged it to be.

10. The mere fact that a verdict for $2,865.30 was $105 in excess of the amount recoverable is not sufficient to show that the jury was influenced by passion or prejudice.

11. Under Comp. St. c. 43, § 45, the court may, in an action on a policy covering both real estate and personal property, allow a reasonable attorney's fee, based on the amount recovered on account of the real property.

Error to district court, Holt county; Kinkaid, Judge.

Action by Peter F. Thompson against the Omaha Fire Insurance Company. E. H. Hubbard and others intervened. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Oldham & Cornett and J. M. Easterling, for plaintiff in error.

M. F. Harrington, H. E. Murphy, and R. R. Dickson, for defendants in error.

IRVINE, C.

This action was begun by Thompson against the Omaha Fire Insurance Company to recover on a policy of insurance covering certain buildings and also personal property, it being alleged that all of said property had been totally destroyed by fire. The insurance company answered, admitting the issuing of the policy, and alleging affirmatively matters which may be grouped as stating, or attempting to state, three defenses: (1) That, contrary to the provisions of the policy, and while it was in force, the plaintiff permitted a mechanic's lien to accrue against the real estate, and that thereafter the plaintiff had executed and delivered to his wife a bill of sale of all personal property. In short, these are allegations of a transfer and incumbrance of the property while the policy was in force. (2) That, prior to the issuance of the policy, the plaintiff had executed a chattel mortgage on a portion thereof. (3) That after the fire the loss had been settled and adjusted between the parties for $1,717, which the defendant agreed to pay within 60 days; and that, relying on such adjustment, the defendant had accepted two orders drawn by the plaintiff against the company for portions of the money,--one for $825, and the other for $292; and that, still later, relying on the adjustment, the defendant, having been summoned in garnishment, had admitted an indebtedness of $600 to the plaintiff, and was adjudged to pay into court the sum of $129.80. This defense, if it be one, is, in short, either a plea of an adjustment, or a plea of accord and partial satisfaction by becoming obligated to third persons in reliance on the accord. The reply, after a general denial, and a special denial of the settlement pleaded, proceeded to aver that plaintiff had made an agreement with the defendant to settle the loss for $1,717, but upon condition that said sum of money should be paid immediately upon the return of the adjuster to Omaha, and within four days from the date of the agreement, and that the defendant had failed to pay any portion thereof within the time fixed; further, that plaintiff had been induced to enter into such agreement by certain representations which were false. E. H. Hubbard intervened, and by way of cross petition alleged an indebtedness from the plaintiff to himself of $825, the making of an order by the plaintiff upon the defendant for said sum, and its acceptance by the defendant. He prayed for judgment against the defendant for that sum. O. O. Snyder & Co. also intervened, alleging an indebtedness of $292, and an order and acceptance similar to that of Hubbard. The Sharpless Company intervened, and pleaded a judgment against plaintiff,and a garnishment of the defendant, and judgment in the garnishment proceedings for $129.80. The insurance company then filed an application whereby it asked that, because of the multiplicity of interests in dispute, the cause be determined by the court in the exercise of its equity jurisdiction. Instead, however, of proceeding in accordance with this application, a jury was impaneled, and the court submitted to the determination of the jury the issues made between the plaintiff and the insurance company, reserving for its own determination the issues presented by the pleadings of the interveners. The jury trial resulted in a verdict for the plaintiff for $2,865.30. The plaintiff remitted $105 from the verdict. The cause then coming on for hearing upon the untried issues, the court found in favor of the three interveners, and accordingly entered judgment in favor of Hubbard for $825, in favor of Snyder & Co. for $292, in favor of the Sharpless Company for $129, and in favor of the plaintiff for the remainder of the verdict after deducting the amount remitted. The insurance company brings the case here by petition in error.

The first question raised relates to the refusal of the court to try the cause without the intervention of a jury. This was not error. Assuming that, by the several petitions of intervention, and by the nature of the answer of the insurance company, a case was finally presented which, under the old procedure, would properly be brought in equity, still the trial of any or all the issues to a jury was a matter within the discretion of the trial court. While it has become elementary, it seems that it is impossible to too often remind the bar that, by virtue of the Code, the distinctions formerly existing between proceedings at law and in equity have been abolished. The constitutional guaranty of trial by jury (Const. art. 1, § 6), is that “the right of trial by jury shall remain inviolate.” That is, the right was not extended by the constitution; it is merely preserved. On the other hand, it was not curtailed. By section 280 of the Code of Civil Procedure it is provided that “issues of fact arising in actions for the recovery of money or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided.” Section 281 provides: “All other issues of fact shall be tried by the court subject to its power to order any issue or issues to be tried by a jury or referred as provided in this Code.” These sections were plainly intended to be preservative of the right of trial by jury as it had formerly existed, and are, in effect, nothing more than a declaration of the former law as to the mode of trial. Under the old procedure, the chancellor might obtain the verdict of a jury by permitting an action at law to be instituted, by a feigned issue, or by directing an issue. 2 Daniell, Ch. Pl. & Prac. p. 1070 et seq. The verdict so reached...