57 Neb. 622 | Neb. | 1899
January 18, 1893, the Phenix Insurance Company issued to the Gothenburg Overall & Shirt Factory a policy of insurance in the sum of $1,500. Of this amount $750 was upon electric motors, sewing machines, and other implements used in the factory, and $750 on merchandise, consisting of raw materials and manufactured articles. When the policy was issued the concern insured was a partnership composed of Holcombe, Reynolds, and Beyers. Reynolds was also defendant’s local agent and transacted its ordinary business at Gothenburg. In July, 1893, Holcombe bought Reynolds’ interest in the business, and in August of the same year he purchased
The policy contained the following provision: “If the assured shall have, or shall hereafter make, any other contract of insurance (whether valid or not) on the property herein described, or any part thereof, without written notice to and without the consent of this company Avritten hereon, * * this policy shall be Aroid.” The defendant claims that there Avas a breach of this condition, and that the policy was thereby invalidated. The plaintiff concedes that additional insurance was procured of the iEtna Insurance Company, but insists that the right to a forfeiture, by reason of that fact, was waived by the defendant. The reply alleges that Hopkins, an agent of the company, charged with the supervision'of its business in this state, Avas in Gothenburg at or about the time the additional insurance was obtained, and, being “informed of the desire of the plaintiff, and his intention, to take such additional insurance, * * made a personal investigation of the facts and conditions pertaining to the said property, and after having so investigated the same gave his consent and approval to the taking of the said additional insurance.” The defendant claims that this allegation does not amount to an averment that it was notified of the additional insurance after such insurance Avas procured, and cites Eagle Fire Ins. Co. v. Globe Loan & Trust Co., 44 Neb. 380, where it was held that .notice to an agent of an intention on the part of the insured to take out other insurance is not notice to the principal that further indemnity has been obtained. Had the pleading been assailed before trial, Ave would not hesitate to hold it insufficient;
One of the conditions of the policy is as folloAVS: .“If the property be sold or transferred (in Avhole or in part), * * * or any change takes place in title or possession
This further condition appears in the policy: “Or if it be a manufacturing establishment, running wholly or in part overtime, or running at night, or if it shall cease to be .operated from any cause whatever, except during the night-time, Sundays, and legal holidays, without said written notice to and without special agreement indorsed on this policy, then, and in every such case, this policy shall be void.” It was alleged in the answer and proven on the trial that the factory referred to in the policy was not operated more than one day in each month after August 4, 1893, and by reason of this fact it is claimed the policy became null and void. We do not think it did. The insured property was not a manufacturing establishment, and the provision quoted is without force or relevancy. If the thing insured was a manufactory, and the machinery described in the policy was used in connection with the operation of the establishment, the defendant’s argument would be unanswerable. But the things insured being exclusively personal property- — machinery and merchandise — it needs no citations of cases to show that the claim for a forfeiture on the ground of non-operation of the plant is entirely baseless. However, we refer to a case decided by the New York court of appeals,. Haplin v. Insurance Co. of North America, 23 N. E. Rep. 989, as a direct authority for the conclusion reached upon this point. In that case a policy on mill machinery and apparatus, apart from the building in which it was contained, provided that “if a building covered by this policy shall become vacant
To prove the value of the property destroyed by the fire the defendant, on the trial, offered in evidence an affidavit made by plaintiff, and used .in the adjustment of his claim against the JStna Insurance Company. This offer was refused on the ground that the value fixed in the affidavit — being $1,000 — was a compromise valuation made, without prejudice, pending negotiations for the settlement of a disputed claim. Upon this ruling error is assigned. It is a conceded rule of procedure that the decision of preliminary- issues of fact touching competency of witnesses, or admissibility of evidence, is within the province of the trial judge, and does not belong to the jury. If proffered evidence is prima facie admissible, it is the duty of the court to receive it; otherwise it should be rejected. In this case the defendant was not content with proving the signature of the plaintiff as a basis for the introduction of the affidavit in evidence. It went further, and brought before the court conflicting testimony bearing upon the competency of the document. It thus needlessly presented to the trial judge an issue of fact involving thé veracity of witnesses; and we are not prepared .to say that the finding of the judge in regard to the competency of the affidavit is unr supported by sufficient evidence,-
Affirmed.