Liverpool & London & Globe Insurance v. Davis

56 Neb. 684 | Neb. | 1898

Ryan, C.

There was a trial of the issues involved in this case in the district court of Douglas county, which trial resulted in findings and a judgment in favor of George P. Davis, the plaintiff in that court, for the amount for which he sued. There was substantially no dispute with respect to the facts, and we shall therefore consider them without attempting to describe the pleadings filed or to review all the evidence adduced. On October 17, 1888, Isaac Reichenberg and Mary Reichenberg executed their note for $1,500 and a mortgage securing payment of the same to be made to Daniel H. Smith October 17, 1893. There was a policy of insurance in existence during the interim above indicated. This policy expired December *8, 1893, and covered the property of Mr. Reichenberg. This policy had been assigned before its expiration, with the said note and mortgage, to George P. Davis. At the expiration of the policy O. E. Bates, as agent for Davis, went to the office of the firm of Webster, Howard & Co., the local agency for 'the insurance company, and of that firm asked a renewal of the policy, as the amount secured by the mortgage had not been paid. His request was for an insurance to cover the interest of Mr. Davis. In respect to what transpired when this request was made, Mr. Hitchcock, the member of the firm of-Webster, Howard & Oo. who transacted the business on behalf of that firm, testified as follows: “Mr. Bates said there was some little question regarding the present owner of the property at that time. He said that he had heard, in a roundabout way, that Mary Reichenberg had disposed of her interest to some other party, but that it was a rumor, and he' could not confirm it, but he would send to the court-house and see in whose name the title stood of record. He did iso and reported that the title stood in the name of Mary Reichenberg. I asked him if he could show in any way if the property had been transferred, or if he knew of his own knowledge or had any way of finding out; and he said he had not, and.so far as he knew, and so far as the records showed, Mary Reichenberg still owned the property. I told him, under the circumstances, I thought the best way would be to write the policy in the name of the party in whose name the property stood of record. He was doing his utmost to find out the owner. That was as far as we could go-, as far as I could, see.” This witness further said that Mr. Bates told him that he was making the insurance to protect the interest of the mortgagee, and explained that he himself would pay the premium, which he did. The policy was made out in the ordinary form in favor of Mary Reichenberg. To this policy there was attached a printed mortgage slip reciting that any loss or damage should be held payable for the account of the assured to’ George P. Davis, mortgagee, and beneficiaries or his assigns. It is argued that the words “for the account of the assured” implied that the loss., if any occurred, should be due to Mary Reichenberg. This iis a strained construction which ignores the recitation that loss should be payable to George P. Davis. The purport of the clause defining the person to whom payment of any loss should be made was that it was to George P. Davis, to be applied on the mortgage indebtedness due him from Mary Reichenberg.

It is, however, insisted that the policy was void because Mary Reichenberg and her husband, by a quitclaim deed of date some months prior to the date of the policy, had conveyed all their interest in the insured property to Mary B. Homan. This deed was not recorded, however, and neither the mortgagee nor his agents had any knowledge of its existence. The clause of the policy relied upon to defeat its operation is as follows: “The entire policy shall be void if the insured has concealed or misrepresented in writing, or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof whether before or after a loss.” On the assumption that the words “the insured” refers to Mary Reichenberg it is insisted that the policy is void because at the time it was issued she did not disclose the fact that she had conveyed her interest in the property about to be insured. The agent of the insurance company understood, when he was dealing with Mr. Bates, that Mr. Bates claimed to be representing and acting in the interest of no one but Mr. Davis. He also knew that Mr. Bates paid the premium solely for the protection of the mortgagee, and Mr. Hitchcock himself suggested the form in which the policy should be made out. Mr. Bates told him of a rumor that Mrs. Reichenberg- had ceased to be the owner of the property, and ascertained that this rumor was not justified by the records. Mr. Bates was known to possess no knowledge except from the record, and the condition of that record was as accurately known by Mr. Hitchcock, who drew up the policy, as by Mr. Bates. During the term covered by the policy the building insured was totally destroyed by fire, and until after this loss the insurance company made no offer to return the premium and to cancel the policy. Under these circumstances no wrong is done if we accept the words “the insured” in the sensé in which they were, understood by the immediate parties to the contract whereby the insurance was effected. As between them the protection of a policy was applied and paid for, solely on behalf of the mortgagee, and this construction does no violence to the sense of the words “the insured” as used in the policy. This disposes of all the questions discussed in the brief of plaintiff in error and the judgment of the district court is

Affirmed.