Phenix Ins. Co. of Brooklyn v. Fuller
| Decision Date | 17 February 1898 |
| Parties | PHENIX INS. CO. OF BROOKLYN v. FULLER. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Where no inquiries are made of an insured as to the character or condition of his title; where he makes no false representation as to the character and condition of his title, relying upon which the insurer is induced to and does insure the property; where the insured has an insurable interest in the property; the insurer accepts and retains the premium; and a loss occurs,--then the insurer cannot escape liability for such loss because of the fact that the insured at the date of the policy was not invested with an absolute and unincumbered title to the insured property, even though the policy provides that it shall be of no validity unless the title of the insured be an unconditional unincumbered one; as in such cases it will be conclusively presumed against the insurer that it intended to and did insure the interest which the insured had in the property, and waived the provision in the policy providing for its invalidity by reason of the imperfect title of the insured.
2. Where a case is tried to the court without a jury, and a general finding made, upon which judgment is rendered, and in addition thereto the court files a written opinion in the case, such opinion is not an essential part of the record of the case when it is brought here for review.
3. The judgment of the district court must stand or fall upon the statutory record of the case; that is, the pleadings, the findings and judgment, and the bill of exceptions made a part of the record.
4. In reviewing such case, this court will conclusively presume that the trial court considered all the competent evidence before it, and decided all the material and necessary issues presented, though from the language of the written opinion the contrary should be made to appear.
Error to district court, Douglas county; Ambrose, Judge.
Action by Fred S. Fuller against the Phenix Insurance Company of Brooklyn. Plaintiff had judgment, and defendant brings error. Affirmed.J. Fawcett and Greene & Breckenridge, for plaintiff in error.
Geo. W. Shields, for defendant in error.
Fred A. Fuller sued the Phenix Insurance Company of Brooklyn, N. Y., in the district court of Douglas county, to recover the value of certain property of his destroyed by fire, which property the insurance company had insured against loss or damage by fire. Fuller had a verdict, and judgment, and the insurance company has filed here a petition in error to review such judgment.
1. The policy contained this provision: “If the interest of the assured in the property be other than an unconditional exclusive ownership, or if any other person or persons have any interest whatever in the property described, whether it be real estate or personal property, or if there be a mortgage or other incumbrance thereon, whether inquired about or not, it must be so notified to the company, and be so expressed in the written part of this policy, otherwise this policy shall be void.” At the time of the issuance of the policy in suit the personal property insured was...
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