Phenix Ins. Co. of Brooklyn v. Holcombe
| Decision Date | 09 February 1899 |
| Citation | 78 N.W. 300,57 Neb. 622 |
| Parties | PHENIX INS. CO. OF BROOKLYN v. HOLCOMBE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. In an action on a contract of insurance containing a clause forbidding other insurance without the written consent of the company, a reply defectively alleging notice to the insurer that additional indemnity had been obtained will, after trial on the merits, be liberally construed, with a view of giving effect to the evident intention of the pleader.
2. An insurance company which commits to an agent the supervision and inspection of its risks is charged with knowledge of any fact learned by such agent while engaged in the performance of his duty as such inspector.
3. An insurance company, having notice that the insured has obtained additional insurance in violation of the contract, will be deemed to have waived its right to insist upon a forfeiture when it refrains for more than 10 months from exercising its right, and then bases an attempted cancellation upon other ground.
4. A condition in a contract of insurance which prohibits a sale, transfer, or any change in the title or possession of the insured property without the consent of the insurer, has no application to a sale or transfer by one partner to another of his interest in the partnership property.
5. Forfeitures are not favored, and, in contracts of insurance, a construction resulting in a loss of the indemnity for which the insured has contracted will not be adopted, except to give effect to the obvious intention of the parties.
6. The insured property was merchandise and machinery used in manufacturing. The policy provided that, if the insured property be a manufacturing establishment, its nonoperation would avoid the contract. Held, that the insured machinery was not a manufacturing establishment, within the meaning of the policy.
7. The decision of preliminary issues touching the competency of witnesses or admissibility of evidence is for the trial judge.
8. If proffered evidence is prima facie admissible, it is the duty of the court to receive it; otherwise, it should be rejected.
9. The evidence examined, and held to be sufficient to sustain the verdict.
Error to district court, Dawson county; Greene, Judge.
Action by J. R. Holcombe against the Phenix Insurance Company of Brooklyn, N. Y. Judgment for plaintiff. Defendant brings error. Affirmed.E. A. Cook and Greene & Breckenridge, for plaintiff in error.
Warrington & Stewart, for defendant in error.
January 18, 1893, the Phenix Insurance Company issued to the Gothenburg Overall & Shirt Factory a policy of insurance in the sum of $1,500. Of this amount, $750 was upon electric motors, sewing machines, and other implements used in the factory, and $750 on merchandise, consisting of raw materials and manufactured articles. When the policy was issued the concern insured was a partnership composed of Holcombe, Reynolds, and Beyers. Reynolds was also defendant's local agent, and transacted its ordinary business at Gothenburg. In July, 1893, Holcombe bought Reynolds' interest in the business, and in August of the same year he purchased the interest of Beyers, and thus became sole owner of the insured property. January 14, 1894, the property was wholly destroyed by fire, and Holcombe thereupon brought this action in the district court of Dawson county to recover upon the policy. A trial to a jury resulted adversely to the company, and by this proceeding in error it seeks to reverse the judgment rendered against it on the verdict.
The policy contained the following provision: “If the assured shall have, or shall hereafter make, any other contract of insurance (whether valid or not) on the property herein described, or any part thereof, without written notice to and without the consent of this company written hereon, * * * this policy shall be void.” The defendant claims that there was a breach of this condition, and that the policy was thereby invalidated.The plaintiff concedes that additional insurance was procured of the Ætna Insurance Company, but insists that the right to a forfeiture by reason of that fact was waived by the defendant. The reply alleges that Hopkins, an agent of the company charged with the supervision of its business in this state, was in Gothenburg at or about the time the additional insurance was obtained, and being “informed of the desire of the plaintiff, and his intention, to take such additional insurance, * * * made a personal investigation of the facts and conditions pertaining to the said property, and, after having so investigated the same, gave his consent and approval to the taking of the said additional insurance.” The defendant claims that this allegation does not amount to an averment that it was notified of the additional insurance after such insurance was procured, and cites Eagle Fire Co. of New York v. Globe Loan & Trust Co., 44 Neb. 380, 62 N. W. 895, where it was held that notice to an agent of an intention on the part of the insured to take out other insurance is not notice to the principal that further indemnity has been obtained. Had the pleading been assailed before trial, we would not hesitate to hold it insufficient; but a trial having been had, and proof having been made, under the issues joined, that Hopkins was informed of the existence of the Ætna policy, and not merely of the plaintiff's intention to procure it, we feel bound to sustain the reply by interpreting it according to the evident intention of the pleader. The company, having committed to Hopkins the supervision of its risks in Gothenburg, was charged with notice of any fact affecting the risk which came to his knowledge while engaged in the performance of his duty as an inspector. Eagle Fire Co. of New York v. Globe Loan & Trust Co., supra. In the case just cited it was held, under a policy containing a forfeiture clause like the one here in question, “(1) that the provision in the insurance policy prohibiting additional insurance on the insured property was inserted therein for the benefit of, and might be waived by, the insurer; (2) that the violation of the policy by the insured in procuring additional insurance on the insured property without the knowledge or consent of the first insurer did not render the policy issued by it void, but voidable only, at the election of such first insurer.” In Slobodisky v. Insurance Co., 52 Neb. 395, 72 N. W. 483, it was held that “notice to an agent of an insurer that the insured had taken out additional insurance on the insured property is notice to such agent's principal.” It was also held in the same case that the failure of an...
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