45 Neb. 554 | Neb. | 1895
The defendant in error was the owner of certain grain in a warehouse in O’Neill. The warehouse and grain were destroyed by fire January 6,1892. The defendant in error held a policy of $1,200 in the Home Fire Insurance Company on this grain, and February 1, 1892, brought this action to recover on the policy. He obtained judgment, and the insurance company brings the case here on error.
Plaintiff in error argues in its brief several questions in. regard to the admission of evidence. The only assignments of error relating to the subject are as follows: “2. For errors committed on the trial in the admission of the evidence of plaintiff as a witness on his own behalf and at the time duly excepted to by the defendant. 3. The court erred in refusing to strike out the evidence of the plaintiff as a witness upon the motion of the defendant upon his cross-examination, it having been shown by such cross-examination that such evidence was incompetent, to the overruling of which motion the defendant at the time excepted.” These assignments are too general to present any questions to this court, for review. They do not point out the. particular rulings complained of. There were a great many objections overruled during the-progress of the plaintiff ’s examination. There were three motions made to strike out his testimony during his direct examination after questions interposed by the defendant. There was none during his cross-examination proper, although the defendant itself interposed a number of “objections” during the cross-exami
The evidence showed that the policy was based on a written application signed by the insured, wherein, among other things, appeared the following interrogatories and answers: “The stock of merchandise. * * * Average value? $1,900. How often is inventory taken? Know at all times. Amount of last inventory? $1,950.” One of the defenses pleaded was that these statements were false. The evidence showed that the insured was engaged in buying grain from a number of different persons down to the latter part of December, and that during the same period, and later, he from time to time shipped grain to Chicago. The evidence as to purchases and shipments is very voluminous, and we have not entered upon the calculation necessary to determine just what amount of grain was on hand at different times. Nor is there sufficient evidence as to the value from time to time to enable us to make such a calculation with any degree of exactness. For the purpose of considering the case, we shall assume that the company’s contention is true, and that the evidence discloses that there was not $1,950 worth of grain on hand when the application was made, and that the average amount kept on hand did not reach in value $1,900. It seems that a Mr. Lyons was the company’s agent at O’Neill. He signed the agent’s certificate on the application, and he signed the policy. The plaintiff, however, testifies that he applied to James Harrington for the insurance, when he stated to Harrington the amount of grain on hand, but not its value; that Harrington inserted the answers to the questions in the application; that Fallon signed the application without having it read over to him, and without knowing that these representations as to value were contained in it. But evidence as to Harrington’s relations to the company is very meager. Fallon speaks of him as the agent of the company, and there is certainly sufficient similarity in the handwriting in the
The court instructed the jury, in effect, that the plaintiff could not recover if he authorized the statement as to the value of the grain, or if he knew when the application was delivered; that it contained such statement; but that the plaintiff was responsible for the statement if Harrington was not the agent of the company, or assisting or cooperating with Lyons. The court refused to instruct, at the request of the company, that unless the representations were substantially true there could be no recovery. The refusal of this instruction is assigned as error. To have given it would have bound the insured by the statements in the application, even if they had been made by the agent of the company without the consent or knowledge of the insured. This is not the law. Indeed counsel for the insurance company frankly admit “that there are many decisions holding that where a party applies to an agent for insurance, and correctly states the facts, the company is liable, although the agent may not write in the application the answers given by the insured.” State Ins. Co. of Des Moines v. Jordan, 29 Neb., 514, recognizes this principle. It is true that in that case it appeared that the in
In this connection it is also argued that the court erred in permitting the plaintiff to amend his pleading so as to introduce this issue in the case. But there is no assignment of error reaching this point.
The policy contained a provision that the loss should be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss had been received by the company, and that no action should be maintained within that time. This suit was brought in less than thirty days after the fire. The jury found specially that prior to the commencement of the action the company had denied all liability upon the policy. It is clearly the law that such denial of liability prevents the company from insisting on this provision. (Hoffecker v. New Castle County Mutual Ins. Co., 5 Houst. [Del.], 101; Allegre v. Maryland Ins. Co., 6 H. & J. [Md.], 408; State Ins. Co. v. Maackens, 38 N. J. Law, 564; Williamsburg City Fire Ins. Co. v. Carey, 83 Ill., 453; Cobb v. Ins. Co. of North America, 11 Kas., 93; California Ins. Co. v. Gracey, 15 Col., 70.) The company, however, while tacitly recognizing this principle, contends that the proof was insufficient to sustain the special finding of the jury. The plaintiff testifies that he gave immediate notice of loss to the company; that sometime afterwards he was accosted by one Denman, who is shown to be the company’s adjuster, and after some talk about the fire, Denman said, to use Fallon’s language, “He was onto me;” that he had been in O’Neill several days investigat
481 bushels of rye, worth............$322.27
870 bushels of oats, worth............ 174.00
477 bushels of corn, worth........... 119.25
748 bushels of wheat, worth......... 501.16
that all of said property was insured by said policy, and was totally destroyed; that there were no incumbrances on said property, and that there was no other insurance on said property, that he was the only person who occcupied the building described in said policy, and in which the property destroyed by said fire was situated at the time of the fire.” It was after this proof was furnished that the adjuster appeared. The policy required that the proofs should state, among other things, the “cash value of each item thereof [meaning the property destroyed], and the amount of loss thereon. * * * Any change in the title, use, occupation, location,- position, or exposures of said property since the issuing of this policy. By whom, and for what purpose any building herein described and the several parts thereof were occupied up to the time of
Judgment affirmed.