State Insurance Company of Des Moines, Iowa v. Schreck
| Decision Date | 04 October 1889 |
| Citation | 43 N.W. 340,27 Neb. 527 |
| Parties | STATE INSURANCE COMPANY OF DES MOINES, IOWA, v. JOHN SCHRECK |
| Court | Nebraska Supreme Court |
ERROR to the district court for Holt county. Tried below before NORRIS, J.
AFFIRMED.
E. W Adams, J. J. King, M. F. Harrington, and Cummins & Wright for plaintiff in error:
The contract is not divisible, and an act which avoids it as to part of the property avoids it as to all. If the consideration to be paid is entire, the contract must be held so, though its subject-matter may consist of several distinct items. .) Furnishing proofs is a condition precedent to recovery, and the petition must allege such furnishing before evidence thereof is admissible. There is no evidence that proper notice was given. (Gladding v. Ins. Co., 4 Pac. Rep., 764.) There is a fatal variance between petition and proof in the description of the premises.
Rice Brothers, for defendant in error:
The Iowa, Minnesota, and Maine cases, cited by counsel for plaintiff in error, are brief and ill-considered, and do not correctly state the law. The contract in question is divisible, and the breach of its conditions made by defendant in error affects only that class of property which was the immediate subject of the act of incumbrance. Insurance contracts are to be sustained if possible. There was great disparity between the conditions of insurer and insured in this case; the former having much the advantage in experience, etc. As to notice and waiver thereof, see Beatty v. Ins. Co., 66 Pa. 9; West Branch Ins. Co. v. Helfenstein, 40 Id., 9; Dohn v. Ins. Co., 5 Lansing [N. Y.], 275; May, Ins., 2d ed., 701. Want of notice is not made a defense; not being specially pleaded. (Underhill v. Ins. Co., 6 Cushing [Mass.], 440; Peoria, etc., Ins. Co. v. Lewis, 18 Ill. 553; Priest v. Ins. Co., 3 Allen [Mass.], 602; N. Y. Ice Co. v. Ins. Co., 23 N.Y. 357; Barber, Ins., sec. 70.) The variance in the descriptions is not fatal. (May, Ins., 872; American Cent. Ins. Co. v. McLanathan, 11 Kas., 533.)
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 arguments 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:
Among the defenses presented by the answer was one that defendant in error had by mortgages incumbered the property insured in violation of the condition 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 buildings. 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 the plaintiff in error, he could not recover 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 the time the loss occurred, the policy would be void as to such property, and plaintiff could not recover anything thereon; but that if at the time of the destruction of the property the mortgages had been paid, so that the property was not incumbered, the fact of their prior execution would not prevent the recovery. It is now contended by plaintiff in error that the policy was an entire contract, and that it prohibited the placing of any incumbrance upon any of the property, and provided that if such incumbrance was created the mortgage would be void, and therefore the defendant in error would not be entitled to recover anything, having violated this provision. It is contended on the part of defendant in error that while the specific buildings referred to in the policy were insured, and that the execution of the mortgage upon the real estate had the effect of avoiding the policy so far as the buildings were concerned, yet there was no specific personal property insured; that the risk being upon a particular kind of property instead of specific articles, to a certain amount, the fact that the property had been mortgaged or sold prior to the fire would make no difference if there was property of the kind and quality described in the policy which was destroyed and to which the defendant in error had a good title.
The...
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