41 Neb. 724 | Neb. | 1894
On the 29th of January, 1890, Sarah J. Suddith and her husband made to Otto Covey a mortgage to secure payment of eight promissory notes for the aggregate amount of $1,685. On the 10th of February, following, the Phenix Insurance Company of Brooklyn, New York,issued its policy of insurance upon the mortgaged property to its owner, Sarah J. Suddith, containing a provision that “ loss, if any, payable to Otto Covey, mortgagee, as his interest may appear.” The building insured was wholly destroyed by fire February 18, 1890. The premium was not paid till after the fire, when, with full knowledge of the fact of loss, this premium was accepted by Palmer & Hendee, who, as local agents of the insurance companv, had authority to fill out and issue policies on behalf of said, insurance company and receive payment of premiums thereon. At the time of the issue of the policy in question it was agreed between the agent of Mrs. Suddith and the aforesaid local agents of the insurance company that payment of the premium might be made at some subsequent time. After the loss the mortgagee brought an action in the district court of Lancaster county, and, upon a trial had, a verdict was returned in his favor against the insurance company, which, as plaintiff in error, presents for our consideration several objections to the judgment and proceedings leading up to it.
It is first insisted that there was error in allowing a reply to be filed during the trial in which a waiver of a re
There was evidence sufficient to sustain the contention that Messrs. Palmer & Hendee issued the policy sued on with full knowledge that concurrent insurance to the amount of $500 in excess of the limitation of $1,000 had been or was being effected by the assured. It may be true that these agents had no authority io waive the limitation at all. Certainly they could contract for a waiver if thereto empowered, only in the manner fixed by the policy; that is,
The allowance of attorneys’ fees is, in argument, criticised because the allowance was in favor of Messrs. Lamb, Ricketts & Wilson by name. These fees.were, however, taxed as costs, and it would seem that whether taxed as
As the insured property was wholly destroyed, there was no requirement or room for arbitration or other ascertainment of the amount of the loss otherwise than as fixed by the statute. (German Ins. Co. v. Eddy, 36 Neb., 461.) Shortly after the loss the adjuster for plaintiff in error visited the place where the fire occurred. It was shown that this adjuster was a general agent of the plaintiff in error, and that he repeatedly inquired into all the facts attending the loss complained of and talked with both the mortgagor and mortgagee upon that subject. This adjuster is shown to have denied that the plaintiff in error was liable to Otto Covey, and to have stated to Mr. Covey’s attorney that nothing would be paid to him on account of this loss. The effect of this, if found as a fact, was fairly submitted to the jury. The judgment of the district court is
Affirmed.