65 Neb. 34 | Neb. | 1902
This is an action brought in the district court of Lancaster county by the Farmers’ Mutual Insurance Company of Nebraska against the State Insurance Company of Des Moines, Iowa, to recover upon fifty-nine separate causes of action, upon which $600 was alleged to be due. The petition filed by the Farmers’ Mutual Insurance Company, defendant in error, sets out its incorporation, and alleges that the State Insurance Company, plaintiff in error, had duly issued and delivered its policies of insurance to the various persons named in the petition, insuring property from loss or damage by fire, lightning and wind storm; that the several parties named in the petition had duly surrendered their policies to plaintiff in error, and demanded a cancelation of the same, and repayment of the unearned premiums due upon each policy; that the unearned premiums mentioned had been duly assigned by the persons to whom they were due to defendant in error; that demand had been made thereon (the amount due upon each separate cause of action being set out), and that payment had been refused. To’ this petition an answer was filed by plaintiff in error, which in each instance admitted the execution and delivery of the policies mentioned, and denied each and every other allegation of the petition, and, in addition thereto, pleaded that each of the policies mentioned contained a provision that if there was a sale or alienation of the property insured, or any part thereof, or if the policy was assigned, or the title to the property changed, etc., or if any other insurance was taken, valid or invalid, upon
It is alleged that there was error in the proceedings of the trial court in the following particulars: (1) That the court erred in overruling the objections by plaintiff in error to the introduction of any evidence on the ground that the petition failed-to state a cause of action; (2) that the judgment is not sustained by sufficient eviden.ce, and that the court erred in finding from the evidence that defendant in error was a corporation; (3) that the court erred in -holding that defendant in error was the legal representative of the insured under the policies issued by plaintiff in error; (4) that the court erred in holding that the assignment of the policies and taking additional insurance without the consent of the insurer
It is contended first that the petition fails to state a cause of action, because it does not allege that the policies had been issued by plaintiff in error to the various persons named, and that at the time the request was made for cancelation they were in full force and effect, and that there is no allegation of the amount of premiums that had been paid, or of the amount which had been earned under the customary short-rate table, or what the commissions of the agents were. The separate causes of action set out in the petition are substantially identical, except as to the names and amounts, only one of which need be quoted, which is as follows: “That on the 11th day of September, 1891, one H. M. Lee had and held a policy of insurance, to wit, No. 671,187, in the company of the defendant, insuring property then owned by him against loss or damage by fire, lightning or tornado; and that on the said day he returned said policy to the defendant and demanded cancelation of the same, and the refunding of the unearned premium then due according to the terms of said policy, to wit, the sum of $1.40, and his note given in payment of the premium on said policy; that thereafter the said H. M. Lee assigned in writing said unearned premium to this plaintiff, a copy of which assignment is herewith filed and marked ‘Exhibit D/ and made a part hereof; that the plaintiff thereupon demanded payment of the defendant, which the defendant refused to make, and that there is now due from the defendant to this plaintiff the sum of $1.40, with interest
It is next contended that the judgment is not sustained by sufficient evidence, and that the court erred in holding that defendant in error was incorporated. From an examination of the evidence offered, and the agreed statement of facts, we are of opinion that the judgment is sustained by sufficient competent evidence. Plaintiff in error attempted to put in issue the corporate character of defendant in error by answering as follows: “This defendant specifically denies that the plaintiff is a corporation, incorporated under and pursuant to the laws of the stale of Nebraska.” Plaintiff in error, in addition to that portion of the answer quoted, pleaded that “if plaintiff were in fact a corporation incorporated under the laws of the state of Nebraska as a mutual insurance company, then and in that event this plaintiff would be governed by the laws of the state of Nebraska applicable to corporations known as mutual insurance companies, and that the provisions of section 3462 [sec. 58, ch. 43] of the Compiled Statutes of Nebraska of 1895, being the law in force at
The third contention is that the court erred in holding that defendant in error Avas the legal representative of the insured as to policies issued by plaintiff in error. The statute provides, in substance, that any insurance company, at the request of a person insured, or his legal representative, shall cancel the policy which has been issued, and shall return to the person insured, or his legal representative, the net amount of premiums received by the company, after deducting the commission of the agent
It is next contended that the court erred in holding that the assignment in question without the consent of the insurer did not make the policy null and void. There seems to have been no assignment or attempted assignment of the policy. The policy appears to have been forwarded to the company, together with a request for its cancelation and a demand for the repayment of the unearned premium. The assignment seems to have been only of the unearned premium. It is manifest that this proceeding would in no way violate, or be affected by, a provision in the policy
Again, it is urged that in the case at bar the policy holders took out new insurance before the cancelation of the old insurance, and that this avoided the policies of plaintiff in error, and for that reason there weré no unearned premiums. This, in the case at bar, seems to be purely a question of fact, which has been found by the trial court against the contention of plaintiff in error, and which finding seems to be clearly supported by the evidence. The new policies appear not to have been issued until after the request for cancelation, duly signed by the insured, had been forwarded, and, so far as the record in the case shows, had been received by plaintiff in error.
Again, it is contended that the contracts made by the defendant in error, by which it obtained an assignment of the unearned premiums due upon the policies mentioned in its petition, were ultra vires. It seems clear that plaintiff in error is not in á position to urge this objection. We understand the rule to be settled that the plea of ultra vires can not be interposed by a stranger; that it can only be interposed by the state which authorized the incorporation of the company, or by a party to the contract which the corporation sought to make. The rule seems to be based upon the proposition that he only can invoke the doctrine of ultra vires who can show the violation of some: duty owing to himself. Belcher’s Sugar Refining Co. v. Grain Elevator Co., 13 S. W. Rep. [Mo.], 822; New Orleans, M. & T. R. Co. v. Ellerman, 105 U S., 166. In the case at bar it does not appear that defendant in error violated any duty or obligation which it owed to plaintiff in error, and for that reason the plea of ultra vires interposed by plaintiff in error can not be sustained.
The next contention is that the court erred in computing the amount of unearned premiums. Section 46, article 2, chapter 43, Compiled Statutes, 1899, is as follows : “Any person, company, association, or corporation, transacting the business of fire, or fire, wind, storm, and tor
The last contention of plaintiff in error is that the court erred in not permitting plaintiff in error to withdraw or
The finding and judgment of the trial court seem to be fully sustained by the evidence, and to be in accordance with law. It is therefore recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.