Phenix Ins. Co. of Brooklyn v. Covey

• Decision Date: 18 September 1894
• Citation: 41 Neb. 724,60 N.W. 12
• Parties: PHENIX INS. CO. OF BROOKLYN v. COVEY.
• Court: Nebraska Supreme Court

41 Neb. 724

60 N.W. 12

PHENIX INS. CO. OF BROOKLYN

v.COVEY.

Supreme Court of Nebraska.

Sept. 18, 1894.

Syllabus by the Court.

1. Where no prejudice has resulted from the ruling of the trial court upon a motion for a more specific statement, such ruling will afford no ground of complaint on error.

2. Where an insurance agent, with authority to receive premiums and issue policies, exercises such authority with knowledge of the existence of concurrent insurance on the premises, the company is estopped, after a loss, to insist that the policy is void because consent to such concurrent insurance was not given in writing.

Error to district court, Lancaster county; Hall, Judge.

Action by Otto Covey against the Phenix Insurance Company of Brooklyn, N. Y., on a fire insurance policy. There was a judgment for plaintiff, and defendant brings error. Affirmed.J. Fawcett and F. M. Sturdevant, for plaintiff in error.

Ricketts & Wilson, for defendant in error.

RYAN, C.

On the 29th of January, 1890, Sarah J. Suddith and her husband made to Otto Covey a mortgage to secure payment of eight promissory notes for the aggregate amount of $1,685. On the 10th of February following, the Phenix Insurance Company of Brooklyn, N. Y., issued its policy of insurance upon the mortgaged property to its owner, Sarah J. Suddith, containing a provision that “loss, if any, payable to Otto Covey, mortgagee, as his interest may appear.” The building insured was wholly destroyed by fire February 18, 1890. The premium was not paid till after the fire, when, with full knowledge of the fact of loss, this premium was accepted by Palmer & Hendee, who, as local agents of the insurance company, had authority to fill out and issue policies on behalf of said insurance company, and receive payment of premiums thereon. At the time of the issue of the policy in question, it was agreed between the agent of Mrs. Suddith and the aforesaid local agents of the insurance company that payment of the premium might be made at some subsequent time. After the loss the mortgagee brought an action in the district court of Lancaster county, and, upon a trial had, a verdict was returned in his favor against the insurance company, which, as plaintiff in error, presents for our consideration several objections to the judgment, and proceedings leading up to it.

It is first insisted that there was error in allowing a reply to be filed during the trial, in which a waiver of a restriction in the policy as to concurrent insurance was for the first time pleaded. In the answer it was alleged that there was contained in the policy a provision that, concurrent with the plaintiff in error's policy of insurance, but $1,000 concurrent insurance could be had without the express consent of the company in writing, and that no consent had been obtained; nevertheless, the owner of the property had caused to be issued to her policies of concurrent insurance to the amount of $1,500, and that, by the express terms of the policy herein sued on, said policy was thereby rendered absolutely void. It was in avoidance of these averments that there was a reply pleading a waiver of this condition by the plaintiff in error. It is quite probable that under many circumstances the motion to make this reply more definite and certain, so as to disclose by what officer or agent this waiver was consented to, should have been sustained,...