129 Neb. 261 | Neb. | 1935
This is another companion case to Krug Park Amusement Co. v. New York Underwriters Ins. Co., ante, p. 239. The evidence is substantially the same as in the above case except as noted below. The policy in this case was executed to the Park Bathing Company, and was issued and delivered August 6, 1932, to take effect September 1, thereafter. The evidence for plaintiff is somewhat stronger than in the other cases as the witness Fox, president of the park company, testified positively that, at his interview with Tukey in June, he told Tukey that the Krug Park Amusement Company was the owner of the property covered by the policy (the bathing pavilion), and to issue
It is suggested that, inasmuch as the policy was not to go into effect until noofi of September 1,, three hours after the rendition of the judgment in the forcible detainer suit, a case of mutual mistake is made out. The difficulty with this proposition is that the evidence establishes the policy was written precisely as ordered and intended by the parties, Mr. Fox may have thought that he was protecting the interests of the amusement company, but Tukey testified he had no knowledge of change of title or claim of ownership by the amusement company, and that he would not have issued the policy in the name of any one other than the owner, whom he understood to be the bathing company. Furthermore, if the change of ownership, as has been shown, took place at 9 o’clock September 1, the policy written in the name of the bathing company never went into effect at all, as at the time of its effective date the ownership of the bathing company had been divested.
The intervener in this case claims the proceeds of the policy of insurance sued upon by virtue of an assignment thereof, but his case depends upon the success of the plaintiff and must fall with the defeat of the latter. For reasons stated in Krug Park Amusement Co. v. New York Underwriters Ins. Co., ante, p. 239, the decree of the dis
Reversed and dismissed.
