44 Neb. 380 | Neb. | 1895
This is a suit brought in the district court of Douglas county against the Eagle Eire Company (hereinafter called the “Insurance Company”) upon an ordinary policy of fire insurance issued by the Insurance Company to one Ida W'. Brown, insuring certain property of hers against loss or damage by fire from noon of the 13th day of March, 1890, to noon of the 13th day of March 1895. The suit is brought by Henry G. Hubbard, Mrs. Brown’s assignee.
The evidence is undisputed that the company canceled'the policy on the 24th of November, 1890, and repaid to Mrs. Brown the unearned premium and took from her a: receipt of that date in words and figures as follows: “Received of the Eagle Eire Company twenty-nine dollars, return premium on policy number 474, in consideration of" which said policy is canceled. Said cancellation dates from November 9th, 1890, subject however to claim for loss up to and including November 9th, 1890.” The evidence is-also undisputed that after the loss had occurred that the-Insurance Company, with knowledge of the fact that Mrs. Brown-had procured additional insurance upon the property subsequent to the date of the policy in suit, spbmitted the-amount of the loss or damage to the insured property to-arbitration. The evidence as to the knowledge or notice which the Insurance Company had of the additional insurance prior to the loss is contained in the following testimony given by Brown, the husband of the insured:
Q. .After * * * this insurance had been taken out that is being sued on here did you visit Ringwalt Bros., agents for the Eagle Company, for the purpose of taking out further insurance?
A. I did; yes, sir.
Q,. Who did you find in the office?
A. Mr. Ringwalt, the same that is sitting right near the desk in the court room. ■ .
*387 Q. At the present.time?
A. Yes, sir.
Q,. What transpired between you and Mr. Ringwalt?
A. I told Mr. Ringwalt that I was going to take out some more insurance. I asked him to give me á list of the insurance, as Mr. Devries had changed the amount of the policies. I was not sure about the amount. He said all fight, and he went and got some large book from a bookcase and he put it down with a lead pencil.
Q. Who put it down?
A. Mr. Ringwalt put down the amount of the insurance and the name of the company and handed that to me.
Q. Look at the paper I hand you now and state whether that is the memorandum Mr. Ringwalt made and handed you at the.time you are speaking of?
A. That is the memorandum.
Q. When did you first speak to Mr. Ringwalt after that about additional insurance and when did he first learn about it to your knowledge, about the additional insurance?
A. After the time I got this paper from him?
Q. Yes.
A. Why, on the morning of the 10th, I think it.was,-, of November. That was the day after the fire on'Monday-morning.
Q. Where did you see him?
A. Out there at the house.
Q,. .What was said there about additional insurance?
A. He wanted to know if I.had that insurance written I was speaking about, and I told him “Yes.”. He said, have-I notified those companies. He wanted to know if they had been out there, and I said, “No, not so far.”
Q. Was anything said about the amount of additional insurance?
A. Yes, I told him the amount.
Q. Was .anything, further said ¿bout it?
*388 A. No, sir; Mr. Ringwalt seemed to be in a hurry. He didn’t stop there more than ten minutes probably all together.
What is the effect of this evidence? We think that the evidence of Brown amounts to this: (1.) That about the 5th of November, prior to the destruction of the property by fire, Mr. Brown, husband and agent of the insured, went to the agents of the Insurance Company, asked them for certain information, and told them that he intended to place additional insurance upon the insured property; but we do not think that this evidence shows, nor that the jury would have been justified in inferring from it, that the Insurance Company, or its agents, knew at any time before the loss made the subject of this suit that Mrs. Brown had procured additional insurance upon the insured property. (2.) That the conduct of the Insurance Company after the loss, in submitting the amount of the loss or damage sustained by Mrs. Brown by reason of the destruction of the insured property by fire to arbitration, was evidence which tended to show that the Insurance Company at that time, having knowledge of the existence of the additional insurance, had elected to waive a cancellation of the policy on account ■of such additional insurance. It is true that the contract between the insured and the insurer under which this arbitration took place provided that the arbitration should not be construed as a waiver of any of the rights or defenses of either party, nor as either an admission or denial of liability on the part of the Insurance Company; but this only meant that the arbitration should not be conclusive evidence of a waiver on the part of the Insurance Company of any legal defense it might have to a suit upon the policy. The arbitration, then, while not conclusive evidence, was we think competent evidence for the jury to consider in determining whether or not the Insurance Company waived the violation of the policy by Mrs. Brown in taking out additional insurance. (3.) That the act of the
In Phenix Ins. Co. v. Covey, 41 Neb., 724, this court said: “ Where an insurance agent, with authority to receive premiums and issue policies, exercises such authority with knowledge of the existence of concurrent insurance on the premises, the company is estopped, after a lgss, to insist that the policy is void because consent to such concurrent insurance was not given in writing.” In other words, the case last cited holds that the knowledge of the insurance company’s agent of the existence of insurance on the property
In Gans v. St. Paul Fire & Marine Ins. Co., 43 Wis., 108, it was held: “Knowledge on the part of the agent of an insurance company, authorized to issue its policies, of facts which render the contract voidable at the insurer’s-, option is knowledge of the company.”
In Bennett v. Council Bluffs Ins. Co., 31 N. W. Rep., 948, the supreme court of Iowa said: “Where the clerk of a duly appointed agent of a fire insurance company solicits insurance on property which he knows, to be insured already in another company, and his employer, the agent, issues the policy upon the application so obtained, the insurance company is bound by the knowledge of the clerk.”
In McEwen v. Montgomery County Mutual Ins. Co., 5 Hill [N. Y.], 101, it is said: “Notice given to an agent relating to business which he is authorized to transact, and while actually engaged in transacting it, will in general enure as notice to the principal.” (See, also, American Ins, Co. v. Gallatin, 3 N. W. Rep. [Wis.], 772; Mattocks v. Des Moines Ins. Co., 37 N. W. Rep. [Ia.], 174.)
There is no error in the record and the judgment of the district court is
Affirmed.