108 Neb. 1 | Neb. | 1922
Plaintiff sues the defendant upon six causes of action, each based upon a separate policy of insurance, and alleges that the live stock described in all of said policies was totally destroyed by fire February 10, 1920, upon the Randolph Ranch, in sections 33 and 34, township 28, range 20, Rock county, Nebraska. Plaintiff also alleges that the location of the property insured was erroneously entered in each of said policies of insurance, but that the defendant, at the time that each of said policies was written, knew where the property insured was actually located and that the misdescription of location in the policies was solely the error of the defendant.
The defendant admits the execution of the policies sued upon, but defends against liability for loss under them for the following reasons: First, the defendant contends that the policies sued upon in plaintiff’s third, fourth, fifth and sixth causes of action, which will hereafter be referred to as exhibits A, B, O, and I), were void and unenforceable at the time of the fire, because the property therein described had been removed from the place where it had been insured, without the knowledge and consent of the. defendant, to the Randolph Ranch; second, the defendant contends that exhibit B was also void, for another reason, viz., because said policy had been changed and mutilated by the plaintiff by the insertion therein of the words, “jennies and jacks;” third, the defendant contends that the policies sued upon in plaintiff’s first and second causes of action, which will be hereafter referred lo as exhibits E and F, never went into effect, because they were obtained by false and fraudulent representad ons of plaintiff as to the location of the property when it was insured.
The claims of the parties are set out in the pleadings
While the defendant alleges many errors, it really predicates its right to a reversal upon three grounds, which Ave will consider in the following order: First, the court erred in instructing the jury that the defendant was liable upon exhibits A, B, C, and D, because each and all of said policies were void as a result of the removal of the insured property, without the consent of the defendant, to a new and more hazardous location. In the consideration of this case it must be first noted that, as to the questions of fact taken from the jury, it comes to us on the same basis as if tried to the court without the intervention of a jury. Dorsey v. Wellman, 85 Neb. 262.
A careful examination of the evidence convinces us that the trial court was justified in concluding that the facts as to exhibits A, B, C, and D were as folhrws: For about six years prior to the issuance of these policies
The general rule as to the change of location of insured property is stated in 19 Cyc. 740, as follows: “A description as to the location of property, although it may be a Avarranty in presentí} is not, in the absence of an express stipulation, a promissory Avarranty that the property will remain in the location described.” It has been
Second, the defendant contends that the court erred in instructing, in substance, that if the jury find that the words, “jennies and jacks,” were inserted in the policy-sued upon in the plaintiffs fourth cause of action by sonic third person, without the knowledge or consent of the plaintiff, she could recover on the policy for the property originally described, but could not recover for the jennies and jacks. The defendant says there ivas no evidence upon which to base this instruction. The defendant requested the jury to make a special finding qn this matter, and the jury found that the words were inserted in the policy by.some third person without the knowledge or consent of the plaintiff. Having requested that, this issue be submitted to the jury, the defendant will not now be heard to say that there was no evidence upon which to base an instruction framed to meet the •contingency (‘rented by this request. Farmers Bank v. Garrou, 63 Neb. 64; Missouri P. R. Co. v. Hemmingway, 63 Neb. 610.
Third, the defendant bases its claim, that the policies sued upon in its first and second causes of action, exhibits E and E, were obtained by false and fraudulent representations, upon a telephone talk had with the plainUf'i’s 1 urban<1 and agent from Long Pine just prior to the time the policies were written. The material part, of this conversation was an alleged statement of Mr. Waters in answer to a question of Mr. Mills, the defendant’s secretary, as to where the live stock upon which this insurance was to be written was located, “He just like the other policies, at the home place.” The defendant says that Mr. Mills understood this as a representation that the property was situatéd upon the home place of Mrs. Waters, meaning the ranch which had been sold some three years before this, that the representation
It follows, therefore, that the trial court was right in instructing that the defendant was liable upon exhibits E and F.
As it appears that none of the policies were forfeited, it will not be necessary to consider the .question of waiver or estoppel.
The question of the amount of plaintiff’s recovery was submitted to the jury by proper instructions. Defendant contends that the recovery is too large, but we think it is justified by the evidence.
The judgment is
Affirmed.