53 Neb. 816 | Neb. | 1898
This is a suit upon an ordinary fire insurance policy brought in the district court of Douglas county by Louis Slobodisky against the Phenix Insurance Company of Brooklyn, New’- York. The jury, in obedience to an instruction of the court, returned a verdict for the insurance company, upon which a judgment of dismissal of Slobodisky’s action was entered, and he brings that judgment here for review on error.
1. There is no dispute in the record as to the execution and delivery of the policy, nor that a fire occurred destroying some and damaging the remainder of the insured'property. As a defense to the action the insurance company pleaded that the insured had failed and neglected to pay the premium for the insurance, and the policy in suit provided that the company should not be liable thereon until the premium for insurance was actually paid. Slobodisky replied to this defense that the agents of the insurer who issued the policy in suit were invested with authority to countersign, issue, and-deliver policies; that for several years he had carried with said agents a line of insurance in various companies, including the insurance here; that such policies had been issued and delivered to him by said agents and a running account kept by said agents with him for the amount of the premiums on such policies, and that periodical settlements between the insured and said agents took place; that this policy was delivered by the agents of the insurer in the same manner that they had been accustomed to deliver other policies to the insured, the agents giving
2. Another defense interposed was that the insured, at the date of the issuance of the policy in suit, had $5,500 of insurance upon the insured property, which added to the $2,500 embraced in this policy made the total insurance on the property $8,000, and that thereby the total insurance .on the property was $3,000 more than permitted by the policy, as it only permitted $5,000 insurance upon the insured’s property, inclusive of that embraced in the policy in suit. This defense is entirely overthrown by the policy itself, which Avas a risk of $2,500 placed by the insurer on a dAvelling-liouse of the insured and the furniture therein, $500 being upon the dwelling-house and $2,000 upon the furniture. But the policy, on the face of it, proAddes that the total insurance permitted by the policy to be placed on the house is $5,000 and the total insurance on the furniture $5,000.
3. A third defense of the insurance company Avas that at the date of the issuance of the policy in suit the household furniture thereby insured Avas incumbered by a chattel mortgage, and that the insured Avrongfully Avitliheld from the agents of the insurer all knoAvledge of the existence thereof. The evidence sIioavs that at the date of the issuance of the policy the household furniture Avas incumbered by a chattel mortgage, but that the value of the personal property, both at the date of the issuance of the policy and at the time of the fire, greatly exceeded the amount of the debt existing against the property which the chattel mortgage Avas given to secure. The
4. A fourth defense of the insurance company was that the house insured by the policy in suit at the date of the policy stood upon leased ground; that is, that the insured did not own the fee-simple title to the lot upon which the insured building stood. The evidence shows that the insured^ in 1889, leased this lot for twenty years and soon afterwards erected thereon a three-story brick and frame building, which is the one insured by the policy in suit; that he took possession of the leased property and was in possession of it under his lease at the date of the policy and at the time of the fire. In other words, the evidence shows that considering the building erected by him upon the leased lot as affixed to the land and being a part of the lot and therefore real estate, the insured, at the date of the policy and at the time of the loss, had an insurable interest in such property. What has just been said with reference to the third defense of the insurance company is applicable to this defense.
5. Another defense of the insurer was that by the terms of the lease between the insured and his lessor the rent reserved and the taxes upon the property were made a lien upon the insured’s interest in this property and that at the time of the issuance of the policy in suit there were certain rents and taxes in arrears, and that these had become and were an incumbrance upon the insured’s property, and that by reason of his default the insured’s lessor had declared the lease forfeited. But the lessee had not been evicted, nor had any judgment of eviction
6. A sixth defense of the insurance company was that the insured building, at the date of the policy in suit, was unoccupied and that the insurer and its agents had no notice of that fact at the date of issuing the policy. Upon this subject the language of the policy is: “If during this insurance the above mentioned premises shall become vacant or- unoccupied, * * * this policy shall cease and be of no force or effect.” For the purposes of this case we assume that the evidence shows that the insured building was not occupied at the time of the issuance of the policy. But the defense of the insurer is that he had no notice of that fact when he issued the policy in suit. There is not a word of evidence in this record which establishes, or tends to establish, that fact; nor is there any evidence which shows, or tends to show7, that the insured represented to the insurer that the building was occupied at the date of the policy, or that the insurer had any reason to infer from anything that the insured said or did that the building was occupied at the date of the policy. For anything that appears in this record the insurer issued the policy in suit on the building and its contents, then and there knowing that the building was unoccupied. We do not know7 of any law that prohibits an insurer from taking a risk upon unoccupied property. ' Whether the property was vacant at the date of the policy, -whether the insurance company knew of its vacancy, whether the insured represented that it was occupied and thereby induced the insurer to take the risk, were questions of fact for the jury. But because the property was vacant and the insurer had no knowledge of these facts do not 'of themselves constitute any defense to this action, The fact that the insured building is de
7. A final defense of the insurance .company was that at the date of the issuance of the policy the insured bxxilding had been sold at a judicial sale to satisfy a mechanic’s lien existing against it. The evidence on this subject shows, or tends to show, that a lien was filed against the property in 1890, nearly three yeai'S before the issuance of the policy in suit, for $97; that in Jxxxxe, 1892, a decree was rendered foreclosing this lien, finding the amount due thereon to be $115.72, — this was soxxxe eight months before the issuance of the policy in suit; that in June, 1892, an order of sale was issued, but nothing done under it until January, 1893, when a sale was made of the property. After the sale was made, to-wit, February 14,1893, the policy in suit was issued, axxd in April, 1894, or more than a year after the issuance of the policy in suit, and after this controversy had arisen, this sale was confirmed. It further ajxpears that this sale was sxibsequently set aside. But, notwithstanding the fact that the ins me d property had been sold at a judicial sale, which was presumably pending for confirmation at the date of the issuance of the policy in suit, the insured still had an insurable interest in this property, as his title to the property was xxot divested by that sale xxntil it was reported and confirmed by the court under whose authority it was made. (See Greenlee v. North British & Mercantile Ins. Co., 71 N. W. Rep. [Ia.] 534; Hanover Fire Ins. Co. v. Brown, 25 Atl. Rep. [Md.] 589.) Furthermore, as the sale was finally set aside, the insured property, at the date of the issuance of the policy, was, as a matter of law, incumbered only by the mechanic’s lien judgment, and the evidence shows conclusively that at the date of this policy the value of the property exceeded by some thousands
Reversed and remanded.