Phoenix Insurance Company v. Meier

• Decision Date: 04 December 1889
• Citation: 44 N.W. 97,28 Neb. 124
• Parties: PHOENIX INSURANCE COMPANY v. WILLIAM MEIER
• Court: Nebraska Supreme Court

44 N.W. 97

28 Neb. 124

PHOENIX INSURANCE COMPANY v. WILLIAM MEIER

Supreme Court of Nebraska

December 4, 1889

ERROR to the district court for Gage county. Tried below before BROADY, J.

AFFIRMED.

R. S Bibb (N. T. Gadd with him), for plaintiff in error:

The agreement between Gadd and Meier, that the former was to be substituted as the debtor of the company without its knowledge, does not constitute a payment of the premium. (McCormick v. Keith, 8 Neb. 145; Stoll v Sheldon, 13 Id., 209; Phillips v. Mayer, 7 Cal 81; Berthuff v. Quinlan, 68 Ill. 297; Graydon v. Patterson, 13 Iowa 256; Drain v. Doggett, 41 Id., 682; Aultman v. Lee, 43 Id., 404; Benny v. Rhodes, 18 Mo. 147; Wheeler, etc., Co. v. Givan, 65 Id., 89; Higgins v. Moore, 34 N.Y. 422; Stewart v. Woodward, 50 Vt. 81; Hall v. Storrs, 7 Wis. 253; Huffman v. Ins. Co., 92 U.S. 161; Kingston v. Kincaid, 1 Wash. [C. C.], 454; Dunlap's Paley on Agency, 291*; Story on Agency, secs. 90, 181; Benjamin on Sales, sec. 1099.) There was no valid contract, as the risk had not been accepted nor the policy delivered. (Continental Ins. Co. v. Jenkins, 5 Ins. Law Journal [Ky.], 514; Buffum v. Fayette Fire Ins. Co., 3 Allen [Mass.], 360; Wallingford v. Home Mutual Ins. Co., 30 Mo. 46; Patterson v. Ben Franklin Ins. Co., 5 Ins. Law Journal [N. Y.], 123; Taylor v. Phoenix Ins. Co., 47 Wis. 365; Mattoon Mfg. Co. v. Oshkosh Mutual Fire Ins. Co., 69 Wis. 564.) Written notice of loss was not given in this case, and is a condition precedent to recovery. (McCann v. AEtna Ins. Co., 3 Neb. 207, and cases cited; Columbian Ins. Co. v. Lawrence, 2 Pet. [U. S.], 53, 10 Pet., 513; Haff v. Marine Ins. Co., 4 Johns. [N. Y.], 135; Brink v. Hanover Ins. Co., 70 N.Y. 594, and cases cited; Owen v. Farmers' Ins. Co., 57 Barb., [N. Y.], 521; Dohn v. Farmers' Ins. Co., 5 Lans. [N. Y.], 275; Inman v. Western Fire Ins. Co., 12 Wend. [N. Y.], 456; Planters' M. I. Co. v. Deford, 38 Md. 400; Smith v. Haverhill M. F. Ins. Co., 1 Allen [Mass.], 297; Johnson v. Phoenix Ins. Co., 112 Mass. 49; Protection Ins. Co. v. Pherson, 5 Ind. 417; Edgerly v. Farmer' Ins. Co., 43 Iowa 587; Germania Ins. Co., v. Curran, 8 Kan. 9; Leadbetter v. AEtna Ins. Co., 13 Me. 265; McPike v. Western Assurance Co., 61 Miss. 37; Troy Fire Ins. Co. v. Carpenter, 4 Wis. 25; Wright v. Ins. Co., 36 Wis. 522; Flanders, Insurance, 573; May, Insurance, sec. 465; Wood, Insurance, sec. 411, 416). None of the conditions precedent were waived. (Barr v. Council Bluffs Ins. Co., 41 N.W. [Ia.], 374; Smith v. Niagara Fire Ins. Co., 15 A. [Vt.], 353; Hankins v. Rockford Ins. Co., 35 N.W. [Wis.], 34.) The occupancy of the risk was changed.

Pemberton & Bush, contra:

A denial of the contract waives the right of insisting on a performance of its conditions. (School District v. Holmes, 16 Neb. 486; Dinsmore v. Stibbert, 12 Id., 433; Carson v. German Ins. Co., 62 Iowa 433; Boyd v. Ins. Co., 70 Id., 325; Kansas Protective Union v. Whitt, 36 Kan. 760; Phoenix Ins. Co. v. Shiers, 8 S.W. [Ky.], 453; Tayloe v. Merchants' Fire Ins. Co., 9 How. [U. S.], 390, 403; King v. Hekla Fire Ins. Co., 58 Wis. 508 [17 N. W. Rep., 297]; Lazensky v. Sup. Lodge, 31 F. 592; Unsell v. Hartford Ins. Co., 32 Id., 443; Commercial Union Ins. Co. v. Scammon, 12 N.E. [Ill.], 324; Travelers' Ins. Co. v. Harvey, 5 S.E. [Va.], 553; Fireman's Ins. Co. v. Floss, 10 A. [Md.], 139.) Delivery was completed by leaving the policy with the agent, Gadd. (Sheldon v. Conn. M. L. Ins. Co., 25 Conn. 207; 65 Am. Dec., 565; Bodine v. Exch. F. Ins. Co., 51 N.Y. 117; Ins. Co. v. Colt, 20 Wall. [U. S.], 560.) The authority of insurance agents, such as the agents in this case, is general and they have the power to waive the payment of the premium even though the policy provide that they shall not have such power. (Young v. Hartford F. Ins. Co., 45 Iowa 377; 24 Am. Rep., 784; Sheldon v. Conn. M. L. Ins. Co., supra; Bouton v. American Ins. Co., 25 Conn. 542; Boehen v. W. C. Ins. Co., 35 N.Y. 131; Sheldon v. Atlantic F., etc., Co., 26 N.Y. 460; 84 Am. Dec., 213, and note; Trustees v. Brooklyn Ins. Co., 19 N.Y. 305; Bowman v. Agr. Ins. Co., 59 N.Y. 521; Bodine v. Exch. F. Ins. Co., supra; Goit v. U. P. Ins. Co., 25 Barb. [N. Y.], 189; Miss. Valley Ins. Co. v. Neyland, 9 Bush. [Ky.], 430; Southern L. Ins, Co. v. Booker, 9 Heisk. [Tenn.], 606; 24 Am. Rep., 344; Murphy v. Southern L. Ins. Co., 3 Baxt. [Tenn.], 440; 27 Am. Rep., 761; Miller v. Life Ins. Co., 12 Wall. [U. S.], 285; May, Insurance, secs. 134, 360; White v. Conn. F. Ins. Co., 120 Mass. 330; Wooddy v. Ins. Co., 31 Gratt. [Va.], 362; 31 Am. Rep., 732, 736; 4 Wait's Act. & Def., 30.) The policy could not be canceled after execution without notifying the insured himself--not simply his agent. (Body v. F. Ins. Co., 63 Wis. 157; Chadbourne v. German Am. Ins. Co., 31 F. 533.)

OPINION

REESE, CH. 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 have 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 said plaintiff for the sum of $ 600 upon the house and the sum of $ 400 upon the saloon fixtures, stove, chairs, and tables, etc., 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 the 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 of 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 between 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 thirty 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 filed and overruled and judgment was rendered upon the verdict for the amount found due.

The motion for a new trial filed in the district court, and the petition in error filed in this court, each consists of a number of assignments of error, but it is not...