Phenix Insurance Company of Brooklyn v. Fuller

• Decision Date: 17 February 1898
• Docket Number: 7862
• Citation: 74 N.W. 269,53 Neb. 811
• Parties: PHENIX INSURANCE COMPANY OF BROOKLYN v. FRED A. FULLER
• Court: Nebraska Supreme Court

74 N.W. 269

53 Neb. 811

PHENIX INSURANCE COMPANY OF BROOKLYN v. FRED A. FULLER

No. 7862

Supreme Court of Nebraska

February 17, 1898

ERROR from the district court of Douglas county. Tried below before AMBROSE, J. Affirmed.

AFFIRMED.

Jacob Fawcett and Greene & Breckenridge, for plaintiff in error.

George W. Shields, contra.

OPINION

RAGAN, C.

Fred A Fuller sued the Phenix Insurance Company of Brooklyn, New York, 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 of the insured was incumbered by a chattel mortgage. The insured did not notify the company of the existence of this mortgage, and no memorandum of its existence was written in the policy. The insurance company interposed as a defense to the action in the district court the existence of this chattel mortgage upon the insured property; and the first argument here is that the judgment of the district court is contrary to law, because the undisputed evidence shows that such a mortgage existed upon the insured property at the date of the issuance of the policy, and that the insurance company was not notified of the existence of such mortgage, and no memorandum of its existence was written in the policy. The evidence on behalf of the insured tends to show that the agent of the insurance company solicited this insurance. At the time the agent had no actual knowledge of the existence of the chattel mortgage upon the property, but made no inquiries of the insured as to whether the property was incumbered. In fact, the subject of an incumbrance upon the property about to be insured was not mentioned by either party, and while the insured kept silent upon the subject of the incumbrance, he did not do so with...