State Ins. Co. v. Schreck
| Decision Date | 04 October 1889 |
| Parties | STATE INS. CO. v. SCHRECK. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A policy of insurance was written upon certain buildings upon the farm of defendant in error, which were fixtures, and constituted a part of the real estate. In addition to the buildings, the policy included personal property on the farm of various classes, but not exceeding a certain amount on each class. No specific personal property was named. The policy also contained a provision to the effect that if any subsequent incumbrance was imposed upon the property insured, or the title changed without the written consent of the secretary of the insurance company, the policy should be void. Prior to the loss the insured executed a mortgage upon the real estate. It was held that the execution of the mortgage would not prevent a recovery for the loss occasioned by the destruction of the personal property.
2. In such case, there being no specific personal property insured, the fact that the assured had incumbered his personal property by the execution of chattel mortgages thereon subsequent to the execution of the policy and prior to the fire, but which mortgages were all paid and canceled prior to the destruction of the property, would not prevent the assured from recovering the loss on personal property of the kind insured, the title to which was unimpaired at the time of the loss.
3. Upon the cross-examination of defendant in error he was asked if, subsequent to the execution of the policy, and prior to the loss, he had not executed chattel mortgages upon the property insured. His answer was that he had, but that they had all been paid. The questions of the execution of the mortgages and of their payment before the loss were specially submitted to the jury, and they found that the mortgages had been executed, but that they had been paid and canceled prior to the loss. It was held that the finding of payment was sustained by the evidence.
4. There was no issue of the payment of the mortgages presented by the pleadings, the allegations of the answer of their execution being denied; but, as the proof of the execution and cancellation of the mortgages was made by plaintiff in error on the cross-examination of the defendant in error when upon the witness stand, plaintiff in error could not successfully contend upon proceedings in error that the evidence was incompetent or immaterial under the issues joined.
5. The policy of insurance required notice of loss to be given to the insurer within 30 days after such loss. It was testified by defendant in error that two of the agents of plaintiff in error were at the fire by which the property was destroyed, and that they had notice of the fact, and agreed to give notice to plaintiff in error; that soon thereafter the adjuster for plaintiff in error (giving his name) appeared and adjusted the loss. It was held that this was sufficient proof of notice, the policy not requiring it to be in writing, and of the agency of the parties named as agents and adjuster.
6. The policy described the real estate upon which the insured property was situated as the “N. E. quarter of sec. 2, tp. 30, range 16, county of Holt, state of Nebraska.” The proof showed that the property was on the north-west quarter of the section named at the time of the insurance, and had so remained from that time until the loss. The mistake being in the policy, it was held that the variance was not material, and that it was not necessary that the policy be reformed before the trial.
Error from district court, Holt county; MORRIS, Judge.
E. W. Adams, J. J. King, M. F. Harrington, and Cummins & Wright, for plaintiff in error.
Rice Bros., for defendant in error.
This action was instituted in the district court of Holt county for the purpose of recovering upon an insurance policy the value of certain property which had been insured and destroyed by fire. The petition was in the usual form. A number of defenses were presented by the answer, some of which will be noticed in the order in which they are presented by counsel in argument and briefs. By the policy of insurance it is provided that, “in consideration that John Schreck, of Stuart, Nebraska, having made his note or obligation to the State Insurance Company for one hundred dollars, agreeing to pay the same according to the terms thereof, for insurance against loss or damage by fire, lightning, wind storms, cyclones, and tornadoes, to the amount of twenty-five hundred dollars on the property hereinafter described, namely:
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¦On his dwelling-house (value of house $300) ¦$200¦
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¦On beds and bedding, while therein ¦50 ¦
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¦On wearing apparel, while therein ¦100 ¦
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¦On household furniture, while therein ¦150 ¦
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¦On sewing-machine, while therein ¦25 ¦
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¦On hog-house ¦50 ¦
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¦On frame barn (value of barn $75) ¦50 ¦
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¦On harness on farm ¦75 ¦
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¦On wagons and carriages on premises ($250) ¦190 ¦
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¦On farming utensils on premises other than mowing and reaping machines ¦60 ¦
¦($75) ¦ ¦
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¦On mowing-machine on premises ($85) ¦40 ¦
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¦On hen-house ¦50 ¦
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¦On grain in buildings or in stack on premises, and against fire and ¦ ¦
¦lightning in buildings or in stack on plowed land on premises, except ¦300 ¦
¦flax ¦ ¦
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¦On frame granary (value $125) ¦100 ¦
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¦On carriage-house ¦50 ¦
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¦On work horses or mules (not to exceed $100 on each) in barns or on farm¦ ¦
¦herein described, and against lightning and tornadoes while at large or ¦400 ¦
¦in use ($500) ¦ ¦
+------------------------------------------------------------------------+----¦
¦On cattle therein, and against lightning and tornadoes while at large, ¦490 ¦
¦not to exceed $25 on any one animal ($660) ¦ ¦
+------------------------------------------------------------------------+----¦
¦On hogs therein or at large, not to exceed $8 on a hog ($200) ¦120 ¦
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--All situated and being on the N. E. quarter of sec. 2, tp. 30, range 16, county of Holt, state of Nebraska. Term five years. Total amount insured $2,500. Premium $100.”
Among the defenses presented by the answer was one that defendant in error had, by mortgages, incumbered the property insured in violation of the conditions of the policy. This condition was as follows:
The buildings referred to in the policy were destroyed by fire, together with a large amount of the personal property. Subsequent to the execution of the policy, defendant in error had executed a mortgage upon his real estate in violation of the terms of the policy, and upon the trial this part of the case was virtually abandoned by him. The jury allowed nothing for the building. The general verdict was in favor of defendant in error for the sum of $998.95, the value of the personal property destroyed. Upon the trial the court instructed the jury that if they found from the evidence that defendant in error had mortgaged the land on which the barn, granary, and hog-house destroyed were situated, without the knowledge and consent of plaintiff in error, he could not recover for such loss, and that if he had executed any mortgages upon the personal property insured by the policy during its existence, without the knowledge and consent of plaintiff in error, and the mortgages were not proven to have been paid at...
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