41 Neb. 21 | Neb. | 1894
This was an action on a policy of insurance written upon a building owned by the defendant in error and occupied by it as a lodge room. There was a verdict and judgment in the district court against the insurance company, from which it prosecutes error. A number of the rulings of the court in relation to the admission of evidence are complained of.
Mr. Schmidt, being upon the stand, testified that he was the secretary of the plaintiff association; that the lodge hada charter issuéd by the grand lodge of the state; that it derived its authority from this charter; that the charter was destroyed in the fire. He was then asked to state what this charter was. This question was objected to as incompetent, immaterial, and calling for secondary evidence upon an insufficient foundation. If the evidence was material, it was certainly competent. We cannot imagine a more satisfactory foundation for secondary evidence than proof that the primary evidence had been totally destroyed. We presume the object of this testimony was to show the organization of the plaintiff and establish its capacity to sue. The petition does not allege the nature
The answer denied plaintiff’s ownership of the land upon which the building stood. In order to prove ownership plaintiff called Mr. Tikalsky, who testified that he had sold the land to the plaintiff; made a deed to the plaintiff of the land in 1886; that this deed was burned with the building. He then ^testified that after the fire another deed was executed to the plaintiff. This deed was then offered in evidence and its admission is urged as error. The deed itself recites that it was executed to take the place of a former deed which had been destroyed by fire in the society hall. It was not necessary to offer the deed, as, upon the proof made, secondary evidence might have been given, and to a certain extent was given, of the contents of the original deed; but this deed, being in the nature of a further assurance, had effect by relation to the original conveyance, and it was competent and material in support of the issues as to plaintiff’s ownership.
It appeared in evidence that there had been some negotiations in regard to the loss between plaintiff’s secretary and three individuals, whose authority to act for the insurance company the plaintiff had considerable difficulty in establishing. There is a long list of assignments of error in relation to evidence in regard to the authority of these men and in regard to transactions with them. To discuss
5 In a general way, the other assignments may be said to be baséd upon evidence as to statements made by Williamsbr Wyman as to their authority and to evidence of their conduct, upon the ground that no authority Rad been shown in them. As to the first of these classes, it is sufficient to say that on every occasion when a question waé asked directly calling for • the declarations of these persons ás to their authority the court promptly sustained objectiohs thereto, and where their statements were admitted they were statements made in the course of negotiations and were admissible, and were admitted not for'the purpose of proving agency, but as part of the res gestee. As to the latter class of objections, we think counsel, to a certain extent," misapprehended the precise issue involved. There was no doubt of the authority of the agent to issue the policy. Its issuance and the payment of premium were expressly admitted.
The defense was two-fold: First, that the plaintiff had not made proper proofs of loss; and second, that the action was not begun within six months, as the policy required. The legal aspects of these defenses will be hereafter considered. It was proved by Kamansky himself that he was a local agent for the company with authority to take applications and some authority at least to collect premiums. Immediately after the fire the plaintiff’s secretary gave to him oral notice of the fire and requested him to communicate with the company, which he at once did. Counsel v Conceive that the plaintiff was endeavoring to establish a waiver by Kamansky of the requirements as to proof of loss, and that no authority to do so was shown; but for
Coming now to the assignments of error relating to the instructions, we will consider first the law as applicable to this case in regard to notice. or proofs of loss. On this subject the court gave the following instruction: “And
1 It is said that no waiver is pleaded. The amended petition '’pleads a performance of “all the conditions of said policy of insurance except final proof of loss, which was waived bythe defendant.” It is charged by plaintiff in error that the last clause was not in the petition when the case was' tried, and a passage near the close of the bill of exceptions tends to corroborate this'statement. We place the decision rather upon the ground that the terms had beeh complied with than that there had been a waiver; but if the case was one of waiver, we would have to accept the--transcript of the record, authenticated by the clerk’s certificate, as conclusive evidence of the contents of the pleadings, and could not permit this evidence to be im
. The limitation clause in the policy was as follows: “ No suit or action against this company shall be sustainable in any court of law or chancery unless commenced within six months next after such loss shall occur, any statute of limitations to the contrary notwithstanding.” A respectable line of authorities is to be found in. support of the validity of similar provisions. There have been at least two cases in this court whose.language indicates that such provisions' under certain conditions are enforceable. (Barnes v. McMurtry, 29 Neb., 178; German Ins. Co. v. Fairbank, 32 Neb., 750.) In no .case, however, has effect been given to such a provision in this state. Notwithstanding the authorities upon the subject, the writer would hesitate to commit himself to the view.that the parties toa contract may bind the courts to a period of limitations other than that prescribed by statute. That quéstion is not, however, necessarily in this-case. The court • instructed the jury upon the subject as follows: .“If you find from the evidence that the defendant, by any conduct or statement of its adjusting agent -
Judgment affirmed.