43 Neb. 569 | Neb. | 1895
John H. Dierks brought this suit in the district court of Holt county against the Omaha Fire Insurance Company to recover the value of certain live stock which he alleged he owned, which had been insured against loss or damage by fire by the insurance company, and which live stock
Of the thirteen assignments of error in the petition in error only one is argued. White, in his petition, alleged:. “About the 5th day of February, 1891, the plaintiff gave notice of said loss to O. Wallace, the agent of the defendant nearest to where the loss occurred, and also gave notice of said loss to the defendant; and about February 5,1891, plaintiff gave notice of said loss verbally to one Hicks, an adjuster of the defendant at the place where said loss occurred, and furnished said adjuster all evidence of said loss by him required, and defendant has requested no further proofs of said loss.” This allegation of the petition the insurance eompány by its answer expressly denied. On the trial of the ease Dierks offered no evidence in support of the allegation of his petition quoted above, and the argument of the insurance company now is that because of such failure of Dierks the verdict of the jury is unsupported by the evidence and the judgment of the district court contrary to the law of the case.
The insurance company, in its answer, in addition to the denial already mentioned, pleaded as an affirmative defense that it had not paid Dierks any sum whatever for any loss he had sustained by reason of the fire of the 2d of February, 1891, — this is the date Dierks alleged the fire occurred which destroyed the insured property, — and denied that any sum was due Dierks from it, or that it was liable for any loss that he had sustained by reason of said fire, because the insurance contract sued upon was procured by the representations in writing made by Dierks at the time he made application for the insurance; that the representation made by Dierks was that the insured property was then unincumbered; that the insurance company believed said representation, relied and acted upon such representation, and insured the property; and that said representation, at
The defense that the policy was not in force at the time of the loss and had never been in force, was utterly inconsistent with the defense of want of notice of the fire. (Tayloe v. Merchants Fire Ins. Co. of Baltimore, 50 U. S., 390.) We had occasion to examine this question in Omaha Fire Ins. Co. v. Dierks, 43 Neb., 473, decided at this term. It was there held that the right of an insurance company to notice of loss is a right which the company may waive, and when the insurer denies all liability for the loss and refuses to pay the same, and places such denial and refusal upon grounds other than the failure of the insured to give notice of the loss, such denial and refusal avoid the necessity of such notice. The issue in this case as to whether Dierks furnished the insurance company notice of the loss, in view of the defense interposed by the insurance company, became, and was, wholly immaterial. The object of pleadings is to inform the court and adverse parties of the facts which the pleader relies upon as a cause of action or a ground of defense, and in the case at bar the insurance company by its answer gave notice that it would defend against the claim, of Dierks on the ground that the policy made the basis of his suit was, as a matter of fact and of law, never in force. The material issue then in the case was not whether the company had issued the policy sued on, whether the pre
Affirmed.