44 Neb. 537 | Neb. | 1895
This action was brought in the district court of Douglas county by L. G. Bangs against the Liberty Insurancé Company of the city of New York (hereinafter called the “Insurance Company”). The action was based on an ordinary fire insurance policy issued by the Insurance Company to Bangs on certain real estate situate in the city of Omaha. The Rochester Loan & Banking Company (hereinafter called the “ Loan Company ”) was joined as a party plaintiff because the policy provided that the loss, if any, should be payable to it as mortgagee. At the close of the evidence the jury, in obedience to a peremptory instruction of the district court, returned a verdict in favor of the Insurance Company, and to reverse the judgment of dismissal pronounced on such verdict Bangs and the Loan Company have prosecuted to this court a petition in error.
“State of Iowa, 1 Carroll County, j '
“I, L. G. Bangs, being duly sworn, depose and say:*542 That my house on lot 3 of Allen’s subdivision of lot 5, Ragan’s Addition to Omaha, Nebraska, was destroyed by fire on the night of November 7, 1891; that the causes of the fire are unknown to me; that the damage done to my buildings was about $1,000, and that said building was insured in the Liberty Insurance Company for $900 by policy dated April 28, 1891; that I have made inquiry and am unable to find anything about the origin of the fire. The policy on said buildings was for $800 on the house and $100 on the barn. L. G. Bangs.
“Subscribed and sworn to,” etc.
We remark: (1.) This was a substantial compliance with the terms of the policy requiring Bangs to furnish the Insurance Company proofs of loss. (Hanover Fire Ins. Co. v. Gustin, 40 Neb., 828.) (2.) That if Bangs had wholly failed to furnish the Insurance Company any proofs of loss whatever, such failure under the circumstances of this case would afford the Insurance Company no defense whatever to this action. Here, as we shall presently see, the Insurance Company refuses to pay the loss, and defends against this action on the ground that the policy in suit was, at the date of the loss of the insured property, not in force. In Phenix Ins. Co. v. Bachelder, 32 Neb., 490, this court, speaking through its present chief justice, Norval, said: “The absolute denial by the insurer of all liability, on the ground that the policy was not in force at the time of the loss, is a waiver of the preliminary proofs of loss required by the policy.” (See, also, Western Home Ins. Co. v. Richardson, 40 Neb., 1.) In Omaha Fire Ins. Co. v. Dierks, 43 Neb., 473, it was held: “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.” (See, also,
Considerable stress is placed by counsel for the Insurance Company upon the fact that it does not appear from the evidence what, if any, consideration Bangs paid the Loan Company for this property, but we do not think that is a matter which concerns the Insurance Company. The Loan Company may have given its property to Bangs, and if so, he would nevertheless be the owner of it. Indeed, it would seem that had the Loan Company conveyed the title to this property to Bangs without consideration and for the fraudulent purpose of placing it beyond the reach of the
The evidence in the record then does not sustain the de
Reversed and remanded.