Getty v. North River Insurance

Carter, J. Plaintiff commenced this action to recover on two fire insurance policies issued by the defendant. From a verdict and judgment for $2,700 the defendant appeals. The evidence discloses that on December 16, 1936, the defendant issued a fire insurance policy in the amount of $2,000 on a one and one-half story cement block veneer dwelling-house located in Stromsburg, Nebraska, which was totally destroyed by fire on January 2, 1937. On July 23, 1936, the defendant insured the household goods in the above described dwelling in the amount of $700. The defendant admits the issuance of the policies, the payment of the premiums thereon, and total destruction of the property by fire. Defendant alleges as a defense that plaintiff and defendant’s agent, John H. Getty, the son of plaintiff, conspired to fraudulently overvalue the house at the time the policy was issued; and that, when the fire started, plaintiff and his son intentionally delayed giving the fire alarm for an unreasonable period of time, which [370] resulted in a complete loss of the dwelling and its contents. It is the contention of the plaintiff that the valued policy-law, Comp. St. 1929, sec. 44-344, is a bar to the pleading and proving as a defense that fraud was perpetrated on the insurance company by intentionally overvaluing the dwelling. ’ In support of this contention plaintiff cites the cases of Lancashire Ins. Co. v. Bush, 60 Neb. 116, 82 N. W. 313; Fadanelli v. National Security Fire Ins. Co., 113 Neb. 830, 205 N. W. 642; United States Fire Ins. Co. v. Sullivan, 25 Fed. (2d) 40. We do not feel any necessity to discuss this point, or the eases cited in support thereof, in view of the issues submitted to the jury and their findings thereon. The evidence of the defendant shows that plaintiff purchased the dwelling-house in question about fourteen months before it burned for the sum of $500. There is evidence also that plaintiff made certain repairs and improvements of the approximate value of $150. Plaintiff testifies that the value of the dwelling was $3,000. An agent of another insurance company which had insured the dwelling against fire in the amount of $2,000 testified that he inspected the house and in his opinion it was worth $2,500 to $3,000. This evidence presented a question of fact for the jury, and we find no reason for interfering with their conclusion on this question. There is evidence on the part of Audrey Jurgens, the housekeeper, that John H. Getty discovered the fire and delayed turning in the fire alarm by driving slowly toward the main part of town. John H. Getty testifies that he tried to turn in an alarm by telephone and found the telephone out of order. He testifies that he drove toward town as fast as weather conditions would permit, but due to wind, snow and poor condition of the road he was unable to drive as fast as usual. There is also evidence in the record on the part of the housekeeper, indicating that John H. Getty was guilty of setting fire to the house. This evidence is disputed by John H. Getty. The verdict of the jury conclusively disposes of these questions of fact. The defendant complains of the refusal of the trial court [371] to instruct the jury that the value of plaintiff’s dwelling-house was to be determined by its value upon the open market and not by the cost of replacement. The trial court properly refused this instruction. If the plaintiff was entitled to recover, the only verdict that could be properly returned is one for the face amount of the policy as provided by the valued policy law. Comp. St. 1929, sec. 44-344. All questions of fact having been resolved against the defendant by the jury, and there being sufficient evidence to sustain the verdict, the defendant’s contention as to the facts is concluded thereby. We have examined all questions of law raised by defendant, and conclude that the record is free from prejudicial error. An attorneys’ fee of $100 is allowed plaintiff as costs for the services of his attorneys in this court. Affirmed.