Phenix Insurance Company of Brooklyn v. Holcombe
| Decision Date | 09 February 1899 |
| Docket Number | 8664 |
| Citation | 78 N.W. 300,57 Neb. 622 |
| Parties | PHENIX INSURANCE COMPANY OF BROOKLYN v. JAMES R. HOLCOMBE |
| Court | Nebraska Supreme Court |
ERROR from the district court of Dawson county. Tried below before GREENE, J. Affirmed.
AFFIRMED.
Greene & Breckenridge and E. A. Cook, for plaintiff in error:
Notice to Hopkins would not establish a waiver of the provision of the policy against additional insurance without consent thereto in writing indorsed on the policy. (Eagle Fire Co. v. Globe Loan & Trust Co. 44 Neb. 380; German Ins. Co. v. Heiduk, 30 Neb. 288; Hughes v. Insurance Co. of North America, 40 Neb. 626; Burlington Ins Co. v. Campbell, 42 Neb. 208; Phenix Ins. Co. v Covey, 41 Neb. 724; Kitchen v. Hartford Fire Ins Co., 57 Mich. 135; Home Fire Ins. Co. v. Hammang, 44 Neb. 566; O'Leary v. Merchants & Bankers Mutual Ins. Co., 66 N.W. 175 [Ia.]; Hankins v. Rockford Ins. Co., 70 Wis. 1; Gould v. Dwelling House Ins. Co., 90 Mich. 302; Carey v. German-American Ins. Co., 84 Wis. 80; Ruthven v. American Fire Ins. Co., 60 N.W. 663 [Ia.]; Northwestern Nat. Ins. Co. v. Mize, 34 S.W. 670; Quinlan v. Providence-Washington Ins. Co., 133 N.Y. 356; Baumgartel v. Providence-Washington Ins. Co., 136 N.Y. 547; Moore v. Hanover Fire Ins. Co., 141 N.Y. 219; Kyte v. Commercial Union Assurance Co., 144 Mass. 43.)
The sale by Reynolds and Beyers to Holcombe of their interest in the insured property was such a change of title or possession to the insured property as avoided the policy. (Allemania Fire Ins. Co. v. Peck, 133 Ill. 220; Keeler v. Niagara Fire Ins. Co., 16 Wis. 550; Wood v. Rutland & Addison Mutual Fire Ins. Co., 31 Vt. 552; Finley v. Lycoming County Mutual Ins. Co., 30 Pa. St. 311; Barnes v. Union Mutual Fire Ins. Co., 51 Me. 110; Hathaway v. State Ins. Co., 64 Ia. 229; Oldham v. Anchor Mutual Fire Ins. Co., 57 N.W. 861 [Ia.]; Jones v. Phoenix Ins. Co. of Hartford, 66 N.W. 169 [Ia.]; Gibb v. Fire Ins. Co., 61 N.W. 137 [Minn.]; Ehrsam v. Phenix Ins. Co., 43 Neb. 554.)
A portion of the property insured constituted a manufacturing establishment, which was not being operated at the time of the fire. (Stone v. Howard Ins. Co., 153 Mass. 475; McKenzie v. Scottish Union & Nat. Ins. Co., 44 P. 922 [Cal.].)
Warrington & Stewart, contra.
On question as to waiver see: Billings v. German Ins. Co., 34 Neb. 502; Georgia Home Ins. Co. v. Kinnier, 28 Gratt. [Va.] 88; Pennsylvania Fire Ins. Co. v. Kittle, 39 Mich. 51; Titus v. Glens Falls Ins. Co., 81 N.Y. 410; Lycoming Mutual Ins. Co. v. Slockbower, 26 Pa. St. 199; Lewis v. Council Bluffs Ins. Co., 63 Ia. 193; Witherell v. Maine Ins. Co., 49 Me. 200; Rathbone v. City Fire Ins. Co., 31 Conn. 193; Gilliat v. Pawtucket Mutual Fire Ins. Co., 8 R. I. 282; Maryland Fire Ins. Co. v. Gusdorf, 43 Md. 506; Hale v. Union Mutual Fire Ins. Co., 32 N.H. 295; New England Farmers & Merchants Ins. Co. v. Wetmore, 32 Ill. 221; Keeler v. Niagara Fire Ins. Co., 16 Wis. 550; Billings v. German Ins. Co., 34 Neb. 502; Hamilton v. Home Ins. Co., 94 Mo. 352; Carpenter v. Continental Ins. Co., 28 N.W. 749 [Mich.]; Key v. Des Moines Ins. Co., 41 N.W. 614 [Ia.]; Home Fire Ins. Co. v. Kennedy, 47 Neb. 138; German-American Ins. Co. v. Hart, 43 Neb. 441; Van Bories v. United Life, Fire & Marine Ins. Co., 8 Bush [Ky.] 133.
As to the transfer of the Reynolds and Beyers interest to Holcombe see: Hoffman v. AEtna Fire Ins. Co., 32 N.Y. 405; Pierce v. Nashua Fire Ins. Co., 50 N.H. 297; Buffalo Steam Engine Works v. Sun Mutual Ins. Co., 17 N.Y. 401; Burnett v. Eufaula Home Ins. Co., 46 Ala. 11; Dermani v. Home Mutual Ins. Co., 26 La. Ann. 69; West v. Citizens Ins. Co., 27 O. St. 1; Texas Banking & Ins. Co. v. Cohen, 47 Tex. 406; Roby v. American Central Ins. Co., 24 N.E. [N. Y.] 808; Virginia Fire & Marine Ins. Co., v. Vaughan, 14 S.E. 754 [Va.]; New Orleans Ins. Co. v. Holberg, 1 So. Rep. [Miss.] 5; Dresser v. United Firemen's Ins. Co., 45 Hun [N. Y.] 298; Cowan v. Iowa State Ins. Co., 40 Ia. 551; Powers v. Guardian Fire & Life Ins. Co., 136 Mass. 108; Lockwood v. Middlesex Mutual Assurance Co., 47 Conn. 553; Allemania Fire Ins. Co. v. Peck, 133 Ill. 230.
As to non-operation of establishment see: Mayhew v. Hardesty, 8 Md. 479; Halpin v. Insurance Co. of North America, 23 N.E. [N. Y.] 989.
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 AEtna 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 Ins. Co. 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 AEtna 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 Ins. Co. 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. Phenix Ins. 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 insurer to cancel its policy, after receiving notice of a breach of the condition against additional insurance, is evidence from which a waiver of the right of forfeiture may be inferred. On the authority of these cases, due notice being established, a waiver was the only inference properly to be deduced from the conceded fact that the defendant, more than ten months after being advised of the additional insurance, made an attempt to cancel its policy, based exclusively on the fact that the factory was not in operation.
One of the conditions of the policy is as follows: "If the property be sold or transferred (in whole or in part), * * * or any change takes place in title or possession (except in case of succession by reason of the death of the assured), whether by legal process or judicial decree, or voluntary transfer, assignment, or conveyance; or if the title or possession shall be changed from any cause whatsoever, * * * without written notice to, and the consent of, the company indorsed hereon, this policy shall in each and every instance be void." Under this provision it is claimed that the sale by Reynolds and Beyers to the plaintiff voided the policy. The argument is that the contract of insurance, being purely a personal one, is broken whenever there is a change in the ownership of the insured property. The question is a vexed one. The adjudged c...
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