10 S.D. 132 | S.D. | 1897
This is an action upon a policy of insurance issued by the defendant upon a stock of goods. Verdict and judgment for plaintiff, and the defendant appeals.
The plaintiff in his complaint alleges that the defendant is a corporation; that on the 23d day of February, 1895, the defendant issued to plaintiff a policy of insurance, and thereby insured the plaintiff against loss or damage by fire in the amount of $2,000, upon his stock of general merchandise in the city of Plankinton, S. D., that at the time of the making of the said insurance, and from then until the fire thereinafter mentioned, he was the owner of the whole of said stock of goods; that on the 17th day of February, 1895, said stock of goods was damaged, and in part destroyed by fire to the amount of $11,858.72, $2,000 of which loss was covered by the said policy of insurance; that the plaintiff duly fulfilled all the conditions of said insurance on his part, and more than 60 days before the commencement of'this action, to-wit, on the 16th day of March, 1895, he gave notice, and made and served proofs of loss, and duly demanded payment of the said sum of $2,000, and that no part of the same has been paid. The defendant, by its answer; admitted its incorporation, and that it issued the policy described in the complaint. As to the other allegations of the complaint, its denial was as follows: -‘That as to whether, at the time of the making of said insurance, and from then until the alleged fire, the plaintiff had an interest in the property insured, as the owner or otherwise, of any part thereof, and to an amount exceeding the said amount of insurance, or in any amount whatever, or
The case was tried to a jury, but no general verdict was rendered, and two questions only were submitted to the jury, as follows: “First. Was gasoline kept or allowed on the premises described in the policy after it was issued?” Answer: “No.” “Second. What amount of damage was caused by the fire to the property covered by the policy?” Answer: “$7,-433.44.” Upon the verdict, the court entered judgment in favor of the plaintiff for the sum of $1,571.85, with costs, taxed at $95.25. No other special verdict was rendered by the jury. The appellant contends that this special verdict was insufficient upon which to base a judgment, as the issue of the ownership of the property at the time of the fire, the issue of the commencement of the action, more than 60 days after the proofs were made and served and notice given, the issue of the waiver of other policies in other companies, taken out before and subsequently to the issuance of the policy in controversy, and prior to the fire, were not found by the jury by their special verdict, and, there being no general verdict, they remain undetermined and undisposed of. The respondent meets this contention by the proposition — First, that the denials in the answer were insufficient to raise the question of ownership of the property; and, second, that the evidence, upon this issue and the issue of the time of commencing of the action and the waiver
The second proposition, that the issues, being established by uncontradicted evidence, will not be required to be found by the jury, is not supported by the authorites. The law upon this subject was thus laid down by this court in Humpfner v. Osborn, 2 S. D. 310, 50 N. W. 88: “A special verdict, as contended by counsel, must find, on all the material facts put in issue by the pleadings, when no general verdict is returned with the special verdict; and this is the case although the evidence may establish beyood controversy the existence of the facts not found.” And this seems to be the settled rule. In addition to the cases cited in that opinion, we may add the following authorities: Moore v. Moore, 67 Tex. 293, 3 S. W. 284. In that case the court says: “It is' the right of the parties to have the jury pass upon all the facts controverted,'by the pleadings; and when they have omitted to do this, however clear and undisputed the evidence upon the issues not found, the court cannot render judgment with usurping in part the functions of the jury, and thereby render a judgment infringing a rightguaranteed by the constitution and the law.” In Eisemann v. Swan, 6 Bosw. 668, Mr. Justice Woodruff, speaking for the court says: “The general term are constrained to decline pronouncing any judgment upon this verdict. It is imperfect and does not furnish the facts necessary to warrant any judgment upon the issues raised by the pleadings. We think the verdict was taken under an erroneous impression in the minds of'the parties respecting the requisites of a special verdict, when that alone appears upon the record in an action for the recovery of money only, or of specific real property. In this respect there is nothing in the Code of Procedure to warrant the idea that'requisites of a special verdict are other or different now than before the Code was enacted. A general verdict determines the entire is
In Indiana, in the late case of Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741, on pages 338-339, the court says: “A special verdict should contain a finding by the jury upon every material fact in issue necessary to constitute the plaintiff’s cause of action or the defendant’s defense upon which there is evidence. Work, Prac. § 851, and cases cited. There need be no finding upon immaterial facts, nor upon- facts proven, but not within the issues. Johnson v. Putnam, 95 Ind. 57. A failure to find upon any material fact in issue is equivalent to a finding against the party upon whom the burden rests to establish such fact. Henderson v. Dickey, 76 Ind. 264; Jones v. Baird, 76 Ind. 164; Parmater v. State, 102 Ind. 90, 3 N. E. 382; Johnson v. Putnam supra; Glantz v. City of South Bend, 106 Ind. 305, 6 N. E. 632. If the special verdict fails to find material facts, within the issues, which were established by the evi
The only cases that we have found holding a contrary doctrine are: McNarra v. Railway Co., 41 Wis. 69; Hutchinson v. Railway Co., Id. 541; Williams v. Porter, Id. 422; Ward v. Busack, 46 Wis. 408, 1 N. W. 107. In the latter case, Ryan, C. J., while concurring in that decision, makes the following vigorous dissent to the doctrine laid down in these cases by his two associates. He says: “I concur in this judgment. The spécial verdict disposes of all the issues in the case, and the question which the learned judge of the court below refused to put was supernumerary. But I cannot give my assent to the dictum that the court may eke out the failure of a special verdict to pass on all the issues, by holding that the evidence on the question omitted appears to the court to be uncontradicted and satisfactory. This is invading the province of the jury, and violating the rule that a verdict must pass upon all the issues. Heeron v. Beckwith, 1 Wis. 17, and cases cited in the note of Vilas and Bryant. The learned justice who writes the opinion of the court cites in support of the dictum three cases in 41.Wis. Those cases were determined in my absence, and they appear to proceed on no authority. They are more or less in conflict with many well-considered cases in the court. And it is to be hoped that they will not be followed.”
It would seem therefore, that the doctrine laid down by this court in Humpfner v. Osborne, supra, is fully sustained by authority. The rule that the special verdict should find all the issues not admitted by the pleadings is certainly a most proper one, as it enables any judge, with the pleadings and special verdict, to determine what judgment should be entered thereon, without reference to what facts were proven on the trial — facts