Roth v. Employers Fire Insurance Company
| Decision Date | 20 May 1932 |
| Docket Number | 28262 |
| Citation | 242 N.W. 612,123 Neb. 300 |
| Parties | PETER ROTH, APPELLEE, v. EMPLOYERS FIRE INSURANCE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES E FOSTER, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
An agent, in making out an application for insurance, acts as the agent of the insurer, and not of the insured. If the insured makes full and honest answers to all questions asked him by the agent who is typewriting the application, the insurance company cannot take advantage of a false answer inserted by its agent, contrary to the facts as stated to such agent by the applicant.
Appeal from District Court, Douglas County; Foster, Judge.
Action by Peter Roth against the Employers' Fire Insurance Company. Judgment for the plaintiff, and the defendant appeals.
Affirmed.
Wear Moriarty, Garrotto & Boland, for appellant.
John A. McKenzie, contra.
Heard before GOSS, C. J., ROSE, DEAN, EBERLY, DAY and PAINE, JJ., and RYAN, District Judge.
This is a suit for $ 1,807.50 upon a fire insurance policy covering personal property. The verdict returned was for $ 1,702.50. Motion for new trial being overruled, appellant prosecutes appeal, setting out 17 errors in its amended motion for new trial.
The evidence discloses that Peter Roth, a farmer about 70 years of age, brought action upon a three-year fire insurance policy, dated April 4, 1929, which had been written by his local banker, R. K. C. Brown, in the appellant company. The policy covered horses, cattle, harness, hay, farm machinery, grain, etc. The fire occurred January 19, 1931, and the loss sustained by Mr. Roth was much greater than the amount of insurance carried upon the property. A few years prior to the time that Roth took out this insurance policy, he had been sued for the sum of $ 7,000 upon a forged note. He had placed a mortgage upon his personal property on October 7, 1926, in favor of his brother, Alfred Roth, to protect against the suit on the forged note. Roth and the banker agent of the insurance company each lived in Papillion, Sarpy county. After the fire the appellant company sought to avoid liability on the ground that there was a chattel mortgage upon the property at the time the insurance policy was written.
The policy contained the following provision: "This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after the loss."
Appellant alleged in the amended answer that appellee concealed and misrepresented in writing that the property insured was not mortgaged, when in fact the appellee had, prior to the signing of said application, mortgaged said property.
The amended answer also set forth the following provision of the policy: "This entire policy, unless otherwise provided by agreement indorsed herein or added hereto, shall be void--if the subject of insurance be personal property and be or become incumbered by chattel mortgage."
It is strongly contended by the appellant that untrue representations made by the insured in his application for insurance will void the policy where such representations related to matters material to the risk, and where, if a true answer had been made, no contract of insurance would have been entered into. Goodell v. Union Automobile Ins. Co., 111 Neb. 228, 196 N.W. 112; Muhlbach v. Illinois Bankers Life Ass'n, 108 Neb. 146, 187 N.W. 787; Morrissey v. Travelers' Protective Ass'n, 122 Neb. 329, 240 N.W. 307.
On the other hand, the appellee sets out the statute, section 44-322, Comp. St. 1929, which reads in part as follows "No oral or written misrepresentation or warranty made in the negotiation for a contract or policy or insurance by the insured, or in his behalf, shall be deemed material or defeat or avoid the...
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