State Ins. Co. v. New Hampshire Trust Co.
| Citation | 66 N.W. 9,47 Neb. 62 |
| Parties | STATE INS. CO. v. NEW HAMPSHIRE TRUST CO. |
| Decision Date | 04 February 1896 |
| Court | Supreme Court of Nebraska |
1. A representation in an application for insurance that no other insurance existed on the property is not to be deemed false, in such a sense as to invalidate the insurance obtained on such application, merely because a former owner of the property, after having parted with his title, effected other insurance thereon in his own favor.
2. Where the application for insurance, and the policy issued thereon by an insurance company doing business in a sister state, bear the same date, it will not be inferred, in the absence of evidence upon that point, that the officers of the insurance company, at its home office, were influenced, by misrepresentations contained in the application, to approve a risk which, had they known of such misrepresentation, they would not have approved.
3. Where, by the terms of the policy of insurance, the loss, if any, is payable to a mortgagee as his interest appears at the time of the loss, the right of such mortgagee to maintain an action for such loss is not necessarily defeated by such misrepresentation in the application for insurance as, by the terms of the contract between the insurer and the insured, would defeat the right of the insured to maintain an action on his own behalf.
Error to district court, Seward county; Bates, Judge.
Action by the New Hampshire Trust Company against the State Insurance Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.Chase Offutt, for plaintiff in error.
C. E. Holland, for defendant in error.
There was a verdict, with a judgment thereon, for the defendant in error in this case, in the district court of Seward county. This judgment on March 24, 1892, was rendered for the sum of $2,124 and costs. The policy upon which plaintiff in error was found liable was issued to J. D. Brown on March 15, 1890. The property insured--a brick building--was totally destroyed by fire on January 16, 1891. The defenses specially pleaded were that, in the application for the above insurance, it had been falsely represented that Brown was the sole, undisputed owner of the property to be insured; that, likewise, it was falsely represented that there was no other insurance on the property; that in said application it was falsely represented that the building to be insured was used solely as a livery barn, whereas, in fact, the upper story thereof was used for an armory; and that by the said application there had not been disclosed the existence of a mortgage upon the premises therein described. These averments of the answer were supplemented by others to the effect that the plaintiff in error had been deceived by the above-described false representations and omission, and so had been induced to insure the property described.
In respect to the alleged false representations as to the ownership of the insured property, the bill of exceptions shows that there was introduced in evidence the record of a warranty deed from James A. Haselwood and his wife to the aforesaid Brown, whereby was conveyed the real property on which was the insured building. The plaintiff in error offered the above-named James A. Haselwood as a witness, and from him elicited the oral statements that the above deed was a trust deed; that the witness still owned in fee simple the property therein described; and that he had held possession of, and had collected the rents arising from, the said property, ever since the making of the aforesaid conveyance. It would be extremely dangerous for this court to assume, upon evidence of this nature, that the jury wrongfully found that the deed attacked was operative according to its terms.
The policy sued upon provided that the loss, if any occurred during the term covered by it, should be payable to the New Hampshire Trust Company, mortgagee, as its interest might appear at the time of such loss. When the policy sued upon was applied for and issued,...
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