Hunt v. State Insurance

Epperson, C. On a former hearing this case was remanded to the district court for a new trial. Hunt v. State Ins. Co., 66 Neb. 125. A trial was had, resulting in a judgment for the plaintiff. Defendant appeals. [34] It is again urged that the policy of fire insurance sued on was rendered Amid by reason of a change in the occupancy of the dAvelling house insured. The evidence now before us relative to the agent’s knowledge of the change in the occupancy of the premises in controversy is the same as that given at the former trial, and this question Avas disposed of adversely to the contention of defendant Avhen the case was before the court on rehearing. Reasons for the conclusion reached may be found in the opinion of Mr. Commissioner Pound, and need not be repeated here;. But defendant noAv contends that the alleged local agent Avas not- the defendant’s agent when the occupancy was changed, and therefore notice to him Avas not sufficient to bind the defendant. The evidence shows that the auditor of this state did not issue a certificate to the said agent, authorizing him to act as such, subsequent to the year 1891, as provided by statute. .The evidence sIioavs that the alleged agent issued the policy to the plaintiff in 1891, and continued soliciting business for the company until after the plaintiff’s loss, sending in notices of changes in the policies issued by him as agent, including one indorsement upon the policy in question. We find, moreover, the deposition of one of the officers of the defendant company in which he says that the agency in controversy continued from its inception (long prior to the date of plaintiff’s policy) until the agent removed from the state, which Avas after the loss complained of. Defendant recognized him as its agent and received the benefits of his efforts in soliciting insurance. He was a recording agent authorized to issue policies and collect premiums. It is bound by his acts and conduct to the same extent that it Avould be had he procured a certificate from the auditor for each of tin* years he Avas so acting. In 1893 plaintiff leased the premises to one Shook, and requested the occupant, Anderson, to vacate. On August 23 Anderson was engaged until about 9 o’clock P. M. in removing his effects. The house .burned a few hours later. Shook Avas to take possession as soon as the house was [35] vacated. Defendant contends that the house was vacant when it burned, and thereby the policy was rendered void by an express provision to that effect. Anderson and his wife were the only Avitnesses Avho knew what, if any, of their effects remained in the house and Avere burned. At most, it appears that only a feAV articles were in or about the house, and these he intended to remove the next morning. Their testimony was not given at the last trial,-but the testimony they gave at the former trial Avas read in evidence. Therefore the same evidence in regard to their removal from the premises Avas before this court Avhen Mr. Commissioner Pound said: “But there Avas some dispute as to whether the tenant had removed all his effects; and whether, under the circumstances, there was a vacancy, -or a mere temporary cessation of occupancy until the tenant was fully removed and some one else could be put in, was a question for the jury.” Hunt v. State Ins. Co., supra. The rules announced in the opinion referred to became the law of the case, and ave see no reason for departing therefrom. The question Avas submitted to the jury as this court previously held it should be. Many errors are assigned Avhicb avo need not discuss. We have carefully examined the record Avith reference to the assignments and find no prejudicial error. We therefore recommend that the judgment of the district court be affirmed. Duffie and Good, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.