Waters v. Nebraska Mut. Ins. Co.
| Decision Date | 01 March 1922 |
| Docket Number | No. 21852.,21852. |
| Citation | 187 N.W. 125,108 Neb. 1 |
| Parties | WATERS v. NEBRASKA MUT. INS. CO. |
| Court | Nebraska Supreme Court |
Where each party to a trial by jury requests the court to direct a verdict in its favor, he waives the right to a finding or trial of the issues by the jury, and consents that the court shall find the facts and apply the law thereto.
Except as to personal property that has a distinct and definite abiding place, a description in an insurance policy as to the location of the property, although it may be a warranty in præsenti, is not, in the absence of an express stipulation, a promissory warranty that the property will remain in the location described.
Where an instruction is given upon an issue submitted to the jury at the request of a party to a suit, he will not be heard to say that there was no evidence upon which to base the instruction.
Insurer's agent, empowered to receive and transmit applications and to receive payments of the premium, binds the company by knowledge acquired in and about the preparation of the application and by representations made to the insured while so doing.
Evidence of alleged fraud and misrepresentation examined, and held not to require such inference.
Appeal from District Court, Rock County; Dickson, Judge.
Action by Minnie A. Waters against the Nebraska Mutual Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.J. A. Brown and G. E. Hager, both of Lincoln, for appellant.
T. F. Nolan, of O'Neill, H. D. Curtiss, of Bassett, and M. F. Harrington, of O'Neill, for appellee.
Plaintiff sues the defendant upon six causes of action, each based upon a separate policy of insurance, and alleges that the live stock described in all of said policies was totally destroyed by fire February 10, 1920, upon the Randolph Ranch, in sections 33 and 34, township 28, range 20, Rock county, Nebraska. Plaintiff also alleges that the location of the property insured was erroneously entered in each of said policies of insurance, but that the defendant, at the time that each of said policies was written, knew where the property insured was actually located and that the misdescription of location in the policies was solely the error of the defendant.
The defendant admits the execution of the policies sued upon, but defends against liability for loss under them for the following reasons: First, the defendant contends that the policies sued upon in plaintiff's third, fourth, fifth and sixth causes of action, which will hereafter be referred to as exhibits A, B, C, and D, were void and unenforceable at the time of the fire, because the property therein described had been removed from the place where it had been insured, without the knowledge and consent of the defendant, to the Randolph Ranch; second, the defendant contends that exhibit B was also void for another reason, viz., because said policy had been changed and mutilated by the plaintiff by the insertion therein of the words, “jennies and jacks”; third, the defendant contends that the policies sued upon in plaintiff's first and second causes of action, which will be hereafter referred to as exhibits E and F, never went into effect, because they were obtained by false and fraudulent representations of plaintiff as to the location of the property when it was insured.
The claims of the parties are set out in the pleadings by suitable averments of admission, allegation, and denial, but these pleadings are too long and involved to be quoted here. Upon these issues there was a trial to a jury. At the close of all the evidence both parties moved for a directed verdict. No formal ruling was made on the motions, but in effect the court overruled the defendant's motion and sustained the plaintiff's motion by instructing the jury that the defendant was liable for the plaintiff's loss upon the policies sued on in plaintiff's first, second, third, fifth and sixth causes of action, exhibits A, C, D, E, and F. The question of defendant's liability upon plaintiff's fourth cause of action, exhibit B, and the amount of plaintiff's loss upon all of the policies was submitted to the jury. The jury returned a verdict finding generally for the plaintiff in the sum of $8,318.74. The jury also made, at the request of the defendant, some special findings as to the fourth cause of action. These special findings will be referred to later. Motion for a new trial was overruled, exceptions taken, and defendant comes here on appeal.
[1] While the defendant alleges many errors, it really predicates its right to a reversal upon three grounds, which we will consider in the following order: First, the court erred in instructing the jury that the defendant was liable upon exhibits A, B, C and D, because each and all of said policies were void as a result of the removal of the insured property, without the consent of the defendant, to a new and more hazardous location. In the consideration of this case it must be first noted that, as to the questions of fact taken from the jury, it comes to us on the same basis as if tried to the court without the intervention of a jury. Dorsey v. Wellman, 85 Neb. 262, 122 N. W. 989.
A careful examination of the evidence convinces us that the trial court was justified in concluding that the facts as to exhibits A, B, C and D were as follows: For about six years prior to the issuance of these policies the plaintiff had been writing insurance upon live stock in Rock county with the defendant company. During this time many insurance policies had been written for her by the defendant and she had suffered some losses under the policies. During all of this time the business of soliciting this insurance, preparing the applications, collecting the first premiums, adjusting and paying for losses, was done by the defendant's agent, Charlie Lanning, who resided at Long Pine, in Brown county. Mr. Lanning's practice and custom in securing this insurance was, upon receiving a request from Mrs. Waters for insurance, to go to the place where the stock was situated, look it over, agree upon the amount of insurance, and then return to his office in Long Pine and prepare an application and forward same to the company in Lincoln. Sometimes the application was signed by Mrs. Waters, but usually it was signed by Mr. Lanning or by some one in the office at Lincoln. The preparation of the application, including the description of the location of the property, seems to have been left entirely to Mr. Lanning or to the company. Up until about three years before the issuance of these policies Mrs. Waters resided upon a ranch owned by her in Rock county. At that time this ranch was sold, and ever since Mrs. Waters has resided in rented property in the village of Bassett,...
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