Schmidt v. Williamsburgh City Fire Ins. Company

• Decision Date: 13 March 1915
• Docket Number: 18783
• Citation: 151 N.W. 920,98 Neb. 61
• Parties: ANNA SCHMIDT, APPELLEE, v. WILLIAMSBURGH CITY FIRE INSURANCE COMPANY, APPELLANT
• Court: Nebraska Supreme Court

151 N.W. 920

98 Neb. 61

ANNA SCHMIDT, APPELLEE, v. WILLIAMSBURGH CITY FIRE INSURANCE COMPANY, APPELLANT

No. 18783

Supreme Court of Nebraska

March 13, 1915

APPEAL from the district court for Douglas county: JAMES P. ENGLISH JUDGE. Affirmed.

AFFIRMED.

Greene Breckenridge, Gurley & Woodrough, for appellant.

A. S Ritchie and Charles L. Fritscher, contra.

HAMER, J. MORRISSEY, C. J., LETTON and FAWCETT, JJ., not sitting.

OPINION

HAMER, J.

This case comes from Douglas county on a second appeal. The former opinion is reported in 95 Neb. 43.

Anna Schmidt owned a building in South Omaha, which was occupied as a rooming house by colored people. It was insured in the defendant company "to an amount not exceeding eight hundred and no-hundredths dollars." Attached to the insurance policy is a clause which says: "Loss or damage, if any, under this policy, shall be payable to Lion Bond & Surety Company, as mortgagee (or trustee), as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same, "provided, also, that the mortgagee (or trustee) shall notify this company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee), and, unless permitted by this policy it shall be noted thereon, and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof, otherwise this policy shall be null and void."

The policy contains a proviso that, if the building insured shall become vacant or unoccupied and shall so remain for ten days, then the entire policy shall be void. The provision reads: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, * * * or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days." The policy also provides that no person shall be deemed the agent of the company in any matter relating to the insurance, unless duly authorized in writing. About March 20, 1910, there was a fire in the insured building which burned a hole around the roof. The tenant moved out. There was a second fire on March 30, 1910, and a third fire April 17, 1910. This last fire seems to have completely destroyed the building, except slight remains of the foundation. The building was vacant and unoccupied from March 20, the time of the first fire, until the last fire, April 17, 1910.

It is claimed that N. P. Dodge & Company preceded Gallagher & Nelson in charge of the insured property. Gallagher & Nelson were the agents of Anna Schmidt, and had charge of the rental of her houses at the time the building was destroyed.

W. G. Dickey testified that he was associated with N. P. Dodge & Company on the 20th day of March, 1910; that their place of business was the Withnell Block in room 206; that he knew the firm of Gallagher & Nelson, who were in business in the Brandeis Building; that he knew Miss Nelson; that at that time he received word from Miss Nelson in reference to a fire in certain property in South Omaha; that he knew Mrs. Anna Schmidt; that he had been in charge of her property; that he got acquainted with her by being in charge of her property; that Gallagher & Nelson succeeded him in charge of her property; that on the 20th day of March, 1910, Miss Nelson called him up by telephone and told him of the fire which occurred in this property in South Omaha; that it had sustained a loss by fire; that Miss Nelson referred to Mrs. Schmidt's property, and that the witness knew what property it was; that it was the property which N. P. Dodge & Company had had charge of previous to this time; that Miss Nelson had said to the witness that the property had sustained a small loss. She "didn't think it would be very much, and if we would agree to it they would go on and have it repaired."

Dickey testified that he called up Mr. Gibson and told him that Miss Nelson had reported a fire loss on this certain property--Mrs. Schmidt's property; that as he wrote the business, and it was "brokered" through his office, "we wanted him to look after it;" that Gibson said he would look after the matter; that the talk with Gibson was quite soon after he first learned about the fire. The witness testified: "I always look after these things quite promptly, you know."

Miss Nelson testified that Gallagher & Nelson had charge of the business of renting houses for Anna Schmidt; that the property was a two-story rooming house; that she was a member of the firm of Gallagher & Nelson; that the firm had charge of Mrs. Anna Schmidt's business; that she personally knew the house that was burned; that it was on lot 2, in block 75, South Omaha; that it was a two-story frame building; that about the 20th of March, 1910, it was occupied by a man by the name of Palm; that a fire occurred there, and that she saw the premises shortly after the fire; that it might have been a week afterwards; that "there was a large hole burned in the roof of the building," that it was around the chimney; that on the 21st of March she told Mr. Dickey about it; that she told Mr. Dickey "it was a small loss, a small fire on Mrs. Schmidt's property."

A. N Gallagher testified that he knew of the fire which occurred on the premises March 20; that he saw the premises on Monday morning, the day after the fire; that there was quite a large hole burned through the roof; that the mortar was all out of the flue, and that mortar and water had dropped down from the top floor, and that the fire had communicated to the top floor, and there was dirt and rubbish around in there; that the premises were then occupied by William Palm; that the premises after this fire of March 20 were not tenantable; that the water from the fire department had dripped down through the ceiling and down the stairway, and that the bedding and beds were all wet, and the plastering, and that the firemen going up there and the people going in had tramped all over the stairs, and plastering and pieces of board and things were all up and down the stairs and floor and very dirty; that the motar was absolutely all out of the flue; that the flue had to be repaired before the house could be used again; that the hole in the roof was seven or eight feet square, and that it was burned up along the flue; that the hole was large...