40 Neb. 626 | Neb. | 1894
Patrick S. Hughes sued the Insurance Company of North America in the district court on a policy of fire insurance to recover the value of a building destroyed by fire owned by said Hughes and insured by said insurance company. At the close of the testimony the district court
The policy sued upon contained this provision: “That the having of other insurance thereon [the property], or any part thereof, valid or invalid, prior or subsequent,' not made known to this company and consented to hereon, will render this policy void.” The policy sued on was issued on the 19th day of June, 188and insured the property of Hughes for $800 until the 19th day of June, 1890. On the 4th day of July, 1889, Hughes procured another policy of insurance upon said property from the Phoenix Insurance Company of New York. This policy was also for $800 and insured the property for one year. The taking out of this second policy by Hughes was not consented to by the Insurance Company of North America, and not known to it until after the destruction by fire of the property insured in February, 1890. The defense made in the district court to-this suit by the insurance company was the procuring on the insured property by Hughes of the second policy of insurance. The evidence establishes without dispute that Hughes procured the second insurance policy at the time.and in the manner stated above. Is this violation by Hughes of said clause in the first insurance policy a defense for the insurance company in a suit upon the policy? We think it is. We do not think that Hughes’ violation of this provision in the policy rendered '■the contract void, but simply voidable at the election of ’■the insurance company. The provision is a reasonable ■one. It is not unconscionable nor illegal, nor is it contrary to public policy. It is a provision inserted in the policy for the benefit of the insurer anda provision which the insurance company may waive. It is designed as a check upon the disposition of the evil-minded to over-insnre their property and destroy it. But where such a provision is violated by the insured it will furnish the insurance company, if it elects to avail itself of it, a complete de
Two arguments are relied upon here by counsel for Hughes to overthrow the defense of the insurance company in this case:
1. It is said that Hughes himself did not procure the additional insurance policy from the Phoenix Company and
2. The policy of insurance issued by the Phoenix Insurance Company contained a provision identical with the provision quoted above from the policy sued on. It is now argued by counsel for Hughes that inasmuch as he did not disclose to the Phoenix Company at the time he procured this policy the existence of the policy in suit, that the Phoenix policy- was never in force, and, therefore, he may en
Affirmed.