German Insurance v. Frederick

Irvine, 0. This was an action by Frederick on a policy of fire insurance issned by the defendant insurance company. From a judgment for the plaintiff the insurance company prosecutes these proceedings in error. Before answering, the company filed a special appear [540] anee objecting to the jurisdiction of the court over the person of the defendant. The objections were overruled, and the matter thereof has been preserved by averments in the answer to which a demurrer was sustained, by the motion for a new trial, and by appropriate assignments of error. Following are the grounds stated for the objections to the jurisdiction: “First, because the face of the summons served in the case fails to state upon what the action is based or the amount claimed. Second, because the defendant is not properly defined or designated. Third, because the amount claimed by plaintiff is indefinite and uncertain. Fourth, because there is no such person as H. L. Bode, upon whom service is represented to this honorable court to have been made.” In addition to the foregoing points certain others are argued in the briefs. Some relate to matters affecting the form of the return and were corrected by amendment thereof by leave of the court. Others cannot be considered, because not presented to the trial court. 'We consider in order those preserved by the foregoing statement. The summons in a case begun in the district court need not state the nature of the action. Section 64 of the Code of Civil Procedure prescribes the requisites of a summons and contains no such requirement. Section 910, relied on by plaintiff in error, is a part of the provisions regulating-practice before justices of the peace, and is not here applicable. The objection that the defendant is not properly defined or designated is based on the fact that the summons described the defendant as the German Insurance Company of Freeport, Illinois, and did not state that it was a corporation or a partnership. The section already cited requires the defendant to be named, but it does not require that it should be described. Under this head there are argued in the briefs certain questions as to the method of service on corporations. Undoubtedly, if the defendant were not in fact a corporation and were served as such, but not in a manner good against an individual or partnership, such objection might be urged [541] by appropriate averments. But the objection here made was not sufficient to raise the sufficiency of the service, conceding that the defendant is a corporation. The objection that the amount claimed is uncertain seems to refer to the indorsement on the writ. Conceding that a service, of a proper summons may be avoided for uncertainty in the amount indorsed, there was here no such uncertainty. The indorsement stated an amount certain, with interest at a rate specified from a date named. This was certain. It also said “and an attorney’s fee.” Attorney’s fees in such cases, when allowed, are taxed as costs, and the amount need no more be stated by indorsement on the summons than that of other costs,— something which cannot be estimated in advance. Finally, the objection that there is no such person as H. L. Bode is based on the theory that it is a designation of a person by initials, and not by his Christian and surname. Possibly the objection to the return might have been good if it had been shown, after the manner of a plea in abatement, that “H. L. Bode” was not the true name, and also what the true name was. But this court has held that in the absence of such showing it cannot be presumed that the initials do not express the full name. (Oakley v. Pegler, 80 Neb. 628; Scarborough v. Myrick, 47 Neb. 794.) The objections to the jurisdiction were properly overruled. It is said that the petition fails to state,a cause of action, in that it does not allege the corporate or other capacity of the defendant. It is more than doubtful whether an averment of the corporate capacity of the defendant was necessary. If so, it was too late to insist on the defect after an answer to the merits. (Exchange Nat. Bank v. Capps, 32 Neb. 242.) The objection was first made by an objection to the introduction of evidence. ’ The principal question in the case arises from the fact that the policy provided that it should be void if the insured premises “be or become vacant or unoccupied.” They were in fact vacant when the policy was issued, and [542] remained so until the time of the fire, nine days-thereafter. The written application contained an inquiry as to how the premises were occupied and the answer, “It is occupied by tenant as a private dwelling.” The proof shows that the application was written by the agent or, under his direction, by his clerk, and that the answer was inserted after a statement by the insured that the premises were then vacant, but had been leased, and that the tenant would move in the next day. Two things are established by former adjudications in this connection. One is that oral evidence is admissible to show that an application was made out by the agent of the insurer on the statements of the insured and that the statements made were true. This relieves the insured from any charge of fraud or misrepresentation, although the agent did not truthfully state the facts. (Home Fire Ins. Co. v. Fallon, 45 Neb. 554.) The other is that the provision against vacancy is one for the benefit of the insurer and may be waived, and that it is waived if the company issues the policy with knowledge of an existing vacancy. (Rochester Loan & Banking Co. v. Liberty Ins. Co., 44 Neb. 537.) The only thing to differentiate this case from the last one cited is that here there was a statement that the premises would be occupied the following day, and there is proof tending to show that the agent withheld delivery of the policy until that day, but without further inquiry as to the occupancy. It'can hardly be claimed that there was a warranty that the tenant would move in the next day. It was a fact that the insured could not control. His statements, so far as- they concerned facts, were true, and the agent saw fit to issue the policy, relying on the probability of early occupancy. It is charged in the brief that the policy was procured by fraud. To this there are two answers. Such fraud was not pleaded, nor was it proved. Objection is made to the introduction of evidence as to the transactions of the insured with the agent, on the ground that the agent was dead at the time of trial. This [543] fact seems to have been assumed, but it was not proved. However, the statute makes such testimony incompetent only where the adverse party is the representative of the deceased. Here that Avas not the case. The deceased in his lifetime had been the representative of the adverse party. Perhaps such cases ought to be brought within the statute, but they are not now within it. Some complaint is made in the briefs because there were taxes against the property not stated in answer to the inquiry as to incumbrances. No such defense was pleaded. The plaintiff, after trial, was permitted to amend petition and reply so as to admit that the premises were vacant,, but to plead the waiver above sustained. There was no error in this. The evidence had gone in on this issue without objection based on its irrelevancy, and the amendment was a proper one to conform the pleadings with the proof. Terms Avere- imposed, by way of requiring compensation for the expense of witnesses to prove the fact of vacancy, and Ave cannot' see that there was any abuse of discretion. It is urged that the evidence was insufficient to sustain the finding. Without rehearsing it at length it is sufficient to say that we think it was sufficient. Objection is made to the allowance of attorney’s fees. This question is too Avell settled to now permit of reconsideration. A neAV trial Avas sought on the ground of newly-disC0Arered evidence. The affidavit in support of this motion merely stated the general purpose of the testimony without stating its nature, and so afforded no basis for an inquiry by the court as to whether the testimony was of such a character as to warrant the granting of a new trial. Affirmed. Harrison, C. J., not sitting.