Slobodisky v. Phenix Insurance Company v. Hartford
| Decision Date | 06 October 1897 |
| Docket Number | 7452 |
| Citation | 72 N.W. 483,52 Neb. 395 |
| Parties | LOUIS SLOBODISKY, APPELLANT, v. PHENIX INSURANCE COMPANY OF HARTFORD, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before WALTON, J. Affirmed.
AFFIRMED.
Parke Godwin and John D. Howe, for appellant.
Wright & Stout, contra.
November 7, 1892, the Phenix Insurance Company of Hartford Connecticut, hereinafter called the "insurer," issued its policy to Louis Slobodisky, hereinafter called the "insured," insuring against loss or damage by fire for a period of one year, to the extent of $ 4,500, a dwelling house and furniture therein belonging to the insured. By the terms of the insurance contract no other or concurrent insurance on the insured property was permitted. The policy provided that it should be void "if the assured now has or shall hereafter make any other insurance whether valid or not, on the said property or any part thereof," without the consent of the first insurer thereto being indorsed on its policy. During the life of this policy the insured procured from another insurance company $ 500 additional insurance on the insured property, the consent of the first insurer thereto not being indorsed on its policy. February 21, 1893, the insured property was destroyed by fire. The insured brought this suit in the district court of Douglas county, alleging in his petition the issuance of the $ 4,500 policy, and that it was "but a continuation and renewal of a line of insurance" which the insured had placed with the insurer a number of years prior to the date of the policy in suit, and which said insurance had been placed with the insurer upon the agreement between the parties that the insured should be permitted to carry a total insurance upon the insured property of $ 5,000; that such a limitation was duly written in all policies which had been issued by the insurer to the insured on his property prior to this $ 4,500 policy, and such a limitation should have been likewise written in that policy; that it was agreed between the insured and the insurer at the time of the issuance of the $ 4,500 policy that the insured might increase the insurance on such policy to an amount not to exceed $ 5,000 in such insurance company as he might desire, and that in pursuance of that agreement the insured did take out the additional $ 500 insurance; that at the time the $ 4,500 policy was delivered to the insured he supposed that it had been drawn up and filled out according to the agreement existing between him and the insurer and correctly recited the contract existing between them; that he did not read the $ 4,500 policy and did not know of the mistake therein until after the loss; that the agent of the insurer wrote out said $ 4,500 policy, but by mistake or fraud limited the total insurance on the insured property therein described to the sum of $ 4,500 instead of $ 5,000, as was agreed between the insured and the insurer. The prayer was that the $ 4,500 policy might be reformed so as to express the alleged contract between the insured and the insurer, and for judgment for $ 5,000 and interest. The answer of the insurer admitted the issuance of the $ 4,500 policy, the procuring by the insured of $ 500 additional insurance, and denied all other allegations of the petition. The insurer also pleaded as a defense, among others, that the insured had, contrary to his contract of insurance, procured $ 500 additional insurance on the insured property without having the consent of the first insurer thereto indorsed on its policy, and had procured such additional insurance without the knowledge or consent of the insurer. The reply of the insured, so far as material here, alleged that the insurer and its agent "were fully advised and informed before such fire...
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