Phœnix Ins. Co. v. Meier

• Decision Date: 04 December 1889
• Citation: 28 Neb. 124,44 N.W. 97
• Parties: PHŒNIX INS. CO. v. MEIER.
• Court: Nebraska Supreme Court

28 Neb. 124

44 N.W. 97

PHŒNIX INS. CO.

v.MEIER.

Supreme Court of Nebraska.

Dec. 4, 1889.

Syllabus by the Court.

1. A denial of the facts alleged in the pleadings should be direct and specific. A denial of the facts averred in the petition, “as alleged in the petition,” is not a denial of the allegations.

2. When an insurance agent, who has authority to issue policies of insurance, issues and delivers a policy upon a building therein described, and agrees with the assured to deduct the premium out of money then in his possession belonging to the assured, and apply it on the payment of the premium, such an agreement is a receipt of the premium, and the company issuing the policy will be bound thereby.

3. In such case, where the policy is delivered to the assured, but is returned to the agent, to be kept in the safe of such agent, with other papers belonging to the assured, the delivery of the policy will be complete, notwithstanding it remains in such safe until after loss.

Error from district court, Gage county; BROADY, Judge.R. S. Bibb and N. T. Gadd, for plaintiff in error.

Pemberton & Bush, for defendant in error.

REESE, C. J.

This action was instituted for the recovery of an amount alleged to be due defendant in error upon a policy of insurance; it having been alleged in the petition that on the 8th day of December, 1886, plaintiff in error, in consideration of the sum of $40, premium, paid it by defendant in error, executed its policy of insurance upon one frame building, and certain personal property therein contained, and which said insured property was consumed by fire on the 3d day of February, 1887, due notice of which had been given to plaintiff in error. The answer consisted of a number of defenses, which we set out at some length, in order to a proper understanding of the questions presented for decision. The first paragraph of the answer was as follows: “Now comes the defendant, and for answer to plaintiff's amended petition herein filed says: That it denies that on the 8th day of December, 1886, it executed and delivered to the plaintiff herein a policy of insurance upon the house and property of the said plaintiff, for the sum of $600 upon the house, and the sum of $400 upon the saloon fixtures, store, chairs, and tables, &c., or for any amount upon any property of plaintiff, as alleged by the plaintiff in his petition in this action. And the defendant, further answering, says that it denies that this plaintiff, on said 8th day of December, 1886, or at any time prior or subsequent thereto, paid to this defendant any premium on any policy or contract of insurance; and the defendant denies that any contract of insurance was entered into between plaintiff and defendant, wherein or whereby this defendant agreed to become, or did become, liable to the plaintiff for any loss by fire that plaintiff might sustain to the property described in his said petition, as alleged in said petition, and defendant denies that it is indebted to the plaintiff in any sum whatsoever.” By the next paragraph of the answer it was alleged that in all of the contracts of insurance issued by plaintiff in error, and in all the forms of policy generally used by it in its fire insurance business, was a condition that if, during the time of insurance covered by the policy, the occupation of the premises assured be changed, then, and from that time thenceforth, so long as said occupation should continue changed, the policy and contract of insurance should cease, and be of no force and effect, except there should be a special agreement in writing on the policy that the insurance should remain in force, notwithstanding the change in the occupancy of the property; that at the time of the alleged insurance the property which was described in the petition was used and occupied as a warehouse, and during the interval betwen the date of the alleged insurance and the date of the alleged fire the occupancy of the property was changed from that of a warehouse to a dwelling-house, and that the property was so occupied at the time of its alleged destruction, and “that there was no agreement in writing in any policy of insurance issued by plaintiff in error to defendant in error, or otherwise, wherein plaintiff in error agreed to insure the premises or property therein contained, as alleged by plaintiff, during the time the premises were so occupied as a dwelling-house, and defendant alleges that it was never agreed in writing, or otherwise, that there might be a change of occupancy in the said premises.” It was further alleged that in the forms of policy generally used by plaintiff in error in its insurance business, and in all of its contracts of insurance, there was a condition that persons sustaining loss or damage by fire should forthwith give notice in writing of said loss to the company, and, within 30 days thereafter, render a particular and specific account of the loss, signed and sworn to by the assured, and that no notice had been given, or proof of loss furnished, as provided by said policy. The answer also contained a general denial of all the allegations of the petition not admitted.

By the reply all the allegations of new matter contained in the answer were denied, and it was alleged that at the time of the insurance the building insured was occupied, and that by the consent of plaintiff in error defendant in error moved into it, and occupied it as a residence for himself and family. It was further alleged that, “as to the proof complained of in said answer not being forwarded in thirty days, * * * defendant denied the insurance and liability to the plaintiff.” A jury trial was had, which resulted in a verdict in favor of defendant in error, finding that there was due to him from plaintiff in error the sum of $1,084.37. A motion for a new trial was...