92 Vt. 272 | Vt. | 1918
This is an action of contract with a count in general assumpsit, on a fire insurance policy. The exceptions relied upon by the defendant in its brief, are to the admission of evidence, to a certain portion of the charge of the court and to the court’s refusal to direct a verdict for the defendant. The plaintiff challenges the sufficiency of the defendant’s exceptions, upon the ground that it does not appear in the exceptions nor in the transcript, that any judgment was rendered in the case or exception taken to it, and an examination of the exceptions and the transcript shows the fact to be as claimed by the plaintiff; but an examination of the docket entries, certified to the clerk of the general term, shows that on October 26, 1916, a verdict was rendered against the defendant, on November 15, 1916, judgment was entered for the plaintiff, on December 18, 1916, defendant’s skeleton bill of exceptions was filed and on August 9, 1917,
From the docket entries it appears that following the judgment exceptions were noted. Within the time limited, the presiding judge signed and filed a bill of exceptions, which placed upon the record the questions of law arising at the trial. This entitled the defendant to a consideration of the questions which are properly raised. 2 R. C. L. 92, par. 68; Felt v. R. R. Co., 48 Colo. 249, 110 Pac. 215, 1136, 21 Ann. Cas. 379; Koehler v. Ball, 2 Kansas 160, 83 Am. Dec. 451; 3 C. J. 939, par. 827; Estabrooks v. Ins. Co., 74 Vt. 202, 52 Atl. 420.
The defendant makes six points in its brief, and the first one made is to testimony of the plaintiff as to the value of the property destroyed by the fire, and that point embraces six objections, to all of which no ground is stated, and the objections and exceptions taken are all as follows: “Objected to, exception by the defendant.”
The defendant urges in support of these objections only that there was no evidence that the plaintiff had any special knowledge of the value of the things testified about. Such an exception goes to the competency of the witness to testify as to values, which.is a preliminary question and not raised by a general objection. Brown v. Aitken, 90 Vt. 569, 99 Atl. 265.
The second point in the defendant’s brief is as to questions to Jacob F. Bidgood, in which the defendant says it was error to admit his testimony, as it does not appear that he had any knowledge of land values in the Vicinity of the property in question. The point briefed, if we treat it as properly briefed, relates to a question as to the value of the house at the time of the fire. The objection to this question was that it “assumed certain things which were not in evidence.” Earlier in the witness’ testimony the objection to incompetency to express an opinion as to values, now relied upon, was interposed and thereupon the examiner, without taking an answer to the question objected to, asked numerous questions for the purpose of qualifying the witness to express an opinion. The objection to competency was not renewed and the court could properly treat it as waived. The exception taken is not briefed and the question briefed is not saved.
The third point raised in the defendant’s brief is based upon exception 8 of, the bill of exceptions, and that exception is to the overruling of defendant’s objections to questions asked the
The fourth point in the defendant’s brief is to the overruling of the motion for a directed verdict and is exception 11. The point of this exception is that the plaintiff failed to furnish the defendant with an amended proof of claim within thirty days after notice by the defendant that the proof of claim already filed was not satisfactory. The fire occurred October 23, 1915 and on October 25, 1915, the defendant was notified of the fact and November 20, 1915, the defendant notified the plaintiff to send to it a proof of loss, which she did November 27, 1915, and the same was received by the defendant November 29, 1915, and on the 6th day of December, 1915, the defendant returned the proof of loss to the plaintiff with its objection and asking for a corrected proof. To this the plaintiff replied that she had given a correct proof of loss, and to this letter the defendant, on the 14th day of December, replied that it did not agree with her and asking her for a meeting at its office at Montpelier to adjust the matter. Later a meeting was had between the plaintiff and Walter Brockway, an agent of the defendant, at the office of J. C. Jones, Esq., in Rutland, Vt., where the conversation to which the defendant objected and excepted as above, took place. Previous to this meeting the plaintiff had insisted that the proof she had already sent to the defendant was correct and she insisted upon that claim on the trial and that question was submitted to the jury with proper instructions by the court. It was a question of fact whether the plaintiff had made the proof of loss within thirty days after notice by the defendant to do so, and it is not disputed by the defendant but that the proof relied upon by the plaintiff was made and furnished within thirty days
The fifth point made by the defendant was on the exception to the court’s charge and failure to charge as requested. The first exception to the charge, as stated by the defendant in the bill of exceptions, is as follows: “The defendant excepted to the charge of the court with reference to the proof of loss, wherein the court said as matter of law it was sufficient, and as to being filed in time, and so far as proof of loss was concerned the plaintiff would be entitled to recover.”
Upon an examination of the charge we find the exception stated does not give the true import of the charge. What the court said upon that matter was as follows: “The proof of loss states that they placed in the schedule the barn at $500 and the house at $800. The plaintiff says that was a fair value and a sound value of the house and the sound value of the barn, as so set forth, in the application. The evidence tends to show it was of that value; that the house was of that value and the barn was of that value. If it was, then the proof of loss was sufficient, and was filed in time, on the 29th day of November, 1915, and so far as the proof of loss is concerned, the plaintiff would be entitled to recover. ”
This was a correct statement of the law upon the question of the sufficiency of the proof of loss made and delivered to the defendant, in view of the claim of the defendant that the action was barred, because the plaintiff had failed to make and deliver a sufficient proof of loss. The defendant cites No. 115 .of the Acts of 1908 in support of its claim that the proof of loss filed by the plaintiff is void; because the defendant gave her notice to make
As to the request to charge, it was nothing more nor less than a request for a binding instruction that the jury return a verdict for the defendant, and presents the same question that is raised on the motion for a verdict, which we have held was properly overruled.
The sixth and last point made in the defendant’s brief is to a portion of the court’s charge, and is stated in the bill of exceptions as follows: ‘1 The defendant also excepts to what the court said or charged the jury, that they might, in considering the value of the buildings, consider the cost of• rebuilding. ”
The charge of the court upon this point as to the measure of damages for the loss of the house and barn, was, in substance, that the difference in-value of the farm before the fire with the buildings standing thereon and its value after the fire without the buildings, was the loss, sustained on account of the destruction of the house and barn, to which no exception was taken.
In calling the jury’s attention.to the manner in which they should determine those values and the things to be considered in that connection, the court, among other things, instructed them as follows: “Now, in determining what this difference would be, we must consider the location, the size of the farm, the size and condition in which the buildings were at the time of the fire, their age, the cost of replacing the buildings in case they were destroyed — all as bearing upon the question as to the difference between the value of the property before the buildings were destroyed, and its value with the buildings burned down.”
The charge of the court upon this point was satisfactory to the defendant, except that portion wherein the court said the jury, might consider “the cost of replacing the buildings in case they were destroyed.” The charge thus excepted to was in effect a charge that-the jury might consider the cost of replacing buildings of equal value with those destroyed, and is in line with the clause in the policy providing a limitation of damages in ease of loss, wherein it- is said: “Which loss or damage shall in no event exceed what it would cost the assured to repair or replace the property with material of like kind and quality.”
Judgment affirmed.
