18 Neb. 495 | Neb. | 1885
This cause was tried in the district court upon the following stipulation or agreed statement of facts:
“ 1st. That on the 5th day of June, 1883, the defendant issued and delivered to plaintiff its policy of insurance, No. 6858, the same being hereto attached marked ‘A’ and made a part of this stipulation, insuring plaintiff against loss on one sorrel gelding in the sum of $125.00, and on one bay horse, $75.00.
“ 2d. That plaintiff gave his note for the premium, said note being hereto attached marked ‘B’ and made a part of this stipulation.
“3d. That before the expiration of said policy of insurance, but after said premium note was due and unpaid, defendant placed said note in the hands of an attorney for collection. That said attorney gave plaintiff notice that said note was in his hands for collection, which notice is hereto attached marked ‘C’ and made a part of this stipulation.
*497 “ 4th. That on the 15th day of March, 1884, the plaintiff paid said note and interest thereon to said attorney, and said attorney remitted the same to the defendant within one week thereafter less collection fees, and that plaintiff did not disclose to said attorney the fact that the said sorrel horse had died on the day previous.
“ 5th. That said sorrel gelding died on the 14th day of March, in the afternoon of said .day, about three o’clock P.M.,'and without fault or neglect on the part of this plaintiff.
“ 6th. That plaintiff gave the defendant notice of said loss as soon as he could find the agent of said company, and within six days after said loss.
“ 7th. That more than forty-five days before the commencement of this action plaintiff gave defendant proof of said loss on blanks furnished by defendant as required in said policy.
“ 8th. That said horse, said sorrel gelding, was of the value of $150.00; that defendant refused to pay the sum of $125.00, and has not paid the same nor any part thereof.
“ 9th. Plaintiff has performed all other conditions of said policy by him to be kept and performed, except as negatived by this stipulation.
“ 10th. It is further stipulated that after defendant was served with summons, and before this cause was tried in justice court, defendant tendered the premium paid by plaintiff for insurance on said sorrel gelding from the time said note was due to the expiration of said policy to plaintiff, with interest and costs to that date thereon, and is now ready to pay the same, and brings the same into court and makes said tender good.
“ The above are stipulated to be the facts of the cause so far as competent or material.
“Signed, &c.”
It is not necessary to set out copies of exhibits attached to the stipulation, further than to say the note referred to
The court found in favor of defendant in error, whereupon a motion for a new trial was made upon the grounds that:
“ 1st. The pleadings of the cause will not support a judgment.
“ 2d. That upon the issues joined defendant is entitled to a judgment for costs, and that plaintiff’s action be dismissed.
“ 3d. Because judgment was rendered in favor of the plaintiff, whereas upon the pleadings and facts defendant was entitled to judgment upon the law and issues joined.
“ 4th. Because the court admitted the stipulation of facts to be considered in evidence, to which defendant at the time objected and excepted because the petition of plaintiff did not entitle him to adduce any evidence in the cause.”
This motion being overruled and judgment entered, plaintiff in error seeks a review.
There are two principal and decisive questions in this case, to-wit: First, Whether or not the petition is sufficient to sustain the judgment; and, Second, If so, whether, the defendant in error could rightly recover under the stipulated facts.
The petition alleges in substance that defendant is an incorporated insurance company. That on the 5th of June, 1883, in consideration of the covenants performed by the plaintiff it issued and delivered to him the insurance policy, a copy of which is attached to the petition. That the gelding horse insured in said policy for $125.00 died on the 14th day of March, 1884, and that said death was not
The objections to the petition will be noticed in the order presented by the brief of plaintiff in error, the first of which is, that there is no allegation that at the time of the issuance of the policy the defendant in error was the owner ■of the horse insured or had any interest in him. The policy is attached to the petition and its recitals are made a part of it. In this policy it is said that the company Roes insure William Scheidle against loss by accident, etc., to the property described. This showed the interest of defendant in error. Ins. Co. v. Slaughter, 20 Ind., 526. The mere fact of the contract of insurance being effected should, we think, be enough prima fade to prove the ownership of the property. If the contract was procured by fraud, and such ownership did not exist, or if the insurance was simply a wager policy, it was proper matter of defense, and if relied upon should be pleaded as a defense. The same may be said of the second objection, that it is not alleged that defendant in error was the owner of the horse at the time of his death.
The third objection is, that it is not alleged that any consideration was given for the issuance of the policy. We think it is substantially so alleged. It is alleged that the policy was issued in consideration of the covenants performed by the plaintiff, and the policy itself, which is embodied in the petition, shows upon its face and acknowledges the payment of the premium.
The next question presented is as to the right of defendant in error to recover upon the facts as agreed to in the stipulation; the note given for the premium not having been paid until after the death of the insured property.
By reference to the note, a copy of which is attached to the stipulation, it may be seen that the non-payment of the amount for which it was given does not terminate the policy, the provision being as follows: “If this note be not paid at maturity the company shall have the right to cancel the policy, but, at their option, may revive it. after full payment of principal, interest, and charges has been made.” By this provision it is apparent that the vitality of the policy did not necessarily depend upon the payment of the note. Plaintiff in error had the right, if it so-elected, to terminate the contract of insurance, but in order to do so an affirmative act upon its part was necessary.
It is insisted that the payment of the note to the attorney in whose hands the note was placed for collection, without making known to him the fact of the death of the property, was an act of bad faith, and that the tender of the money back, after suit brought, should relieve the company from any liability. To this it may be answered, the note matured on the 27th day of July, 1883, and plaintiff might have terminated its liability had it seen proper to do so. The note was paid on the 15th day of March, 1884. Notice and proof of loss was given and made more than forty-five days before the commencement ■of this action, yet plaintiff in error held the money until after the commencement of the action, thus treating the contract of insurance as binding until the service of summons.
It may be, and is perhaps true, that the loss hastened the payment of the note, yet the payment not being essential to the life of the policy, its payment or non-payment would not change the rights of the parties.
The judgment of the district court is affirmed.
Judgment aeeiemed.