77 Neb. 232 | Neb. | 1906
These actions are brought on policies of fire insurance issued by the several plaintiffs in error to the defendants in error on their stock of buggies, wagons, plows, harvesters, and all other merchandise usually kept in a business of this kind, like harness, binding twine, etc. The Ilcr-polsheimers were insured in different companies for $8,000, $1,000 of which was in the Citizens Insurance Company, $2,000 in the Phenix Insurance Company, and $1,000 in the Reliance Insurance Company. The remainder of the $8,000, aside from $3,000, carried by the Citizens Insurance Company in a separate policy not involved in these actions, was carried in other companies. On the night of August 21, 1901, a fire occurred, whereby certain of the insured property was wholly destroyed and other parts thereof damaged. F.. P. Olmstead, an attor
After the entry of judgment plaintiffs in error filed a motion for judgment on the pleadings, grounded upon the fact that defendants in error had filed no reply to the allegations of the amended or supplemental answers, and the first assignment of error argued in the brief is based upon the refusal ,of the court to sustain said motion, and to enter judgment in favor of the plaintiffs in error. It is urged that under our practice all material allegations of an answer not denied by the reply stand admitted; and it was held in Grant v. Bartholomew, 57 Neb. 673, that, “though the evidence disproves the material allegations of new matter in the answer, such evidence will be disregarded, unless such new matter is denied by a reply.” That a material allegation in the petition not denied by the answer, or in the answer not controverted by the reply, stands admitted, is the rule of our code which the plaintiffs in error insist shall be applied in these cases. To this contention we cannot agree. Aside from the fact that leave to file this amendment was not given until the entry of final judgment in the case, when the defendants in error had no opportunity to file a reply, is the provision of section 144 of the code, providing for amendments, which directs the court to allow them on such terms as shall be just. When leave was asked to file the
When the case was called for trial, tbe plaintiffs in error requested that tbe issues made between tbe Her-polsheimers and tbe companies, and tbe issues raised by tbe pleadings filed by Olmstead, be separately tried. This was refused by tbe court, and such refusal is assigned as error. It is insisted, and there is some force in tbe suggestion, that Olmstead and tbe Herpolsheimers tried tbe case on inconsistent and conflicting theories, and that plaintiffs in error bad to meet each of those theories and were placed at a disadvantage in consequence thereof. We cannot avoid tbe suspicion, after reading Olmstead’s pleadings in tbe case, that plaintiffs in error were quite contented that Olmstead should remain a party to tbe suit and establish, if be could, tbe allegations of bis cross-bill. That bis presence in the action was more embarrassing to tbe defendants in error than to tbe companies is quite.apparent from an inspection of the record; but in any event Olmstead bad no claim against tbe companies, and tbe most be could do was to establish tbe amount due him for legal services from tbe Herpolsheimers, and have this claim made a lien upon any judgment that might be entered against tbe companies in their favor. That it was
Assignments 3, 5 and 6 each relate to alleged, errors in tbe introduction of testimony.' As the case was tried to the court without the intervention of a jury, the admission of incompetent or irrelevant evidence is not reversible error. In Willard v. Foster, 24 Neb. 205, it is said: •‘In causes thus tried, it has been often held by this, as well as other courts, that error for the admission of improper evidence would.not lie. The court must necessarily have an opportunity to examine each article of evidence offered, even for the purpose of rejecting it; and so the duty of acting and deciding the cause, upon the legal and relevant evidence selected from the mass that may have been introduced, may be as well discharged by the court upon the final consideration of the cause, as to pause in the course of the trial, to pass upon the admissibility of the several matters offered in evidence.” This has been-the uniform rule of this court, as evidenced by numerous cases since the decision in Willard v. Foster, supra.
The fourth assignment relates to the finding of the district court that the Herpolsheimers had an insurable interest in what is known as the “Acme harvester repairs.” The evidence is sufficient to establish the findings of the court that the Acme harvester repairs were received by the Herpolsheimers under a contract by which they Avere authorized to sell the same and give title thereto; that they were to receive as their compensation the amount of the sale, less a fixed price for the goods, and they were liable to account for the stipulated price if the goods .were not accounted for. This, no doubt, under the authorities, gave the Herpolsheimers an insurable interest in the goods. In German Ins. Co. v. Hyman, 34 Neb. 704, it was held that “an interest, to be insurable, does not depend necessarily upon the ownership of the property. It may be a special or limited interest disconnected from any title, lien, or possession. If the holder of an interest in property will suffer loss by its destruction he may indem
The seventh assignment relates to alleged errors of the court on its finding of damages to the binding twine, the value thereof and the admission of testimony in relation thereto. None of the twine was burned.. The damage thereto was by water. A portion of the twine, perhaps one-half of it, was taken out of the burned building, put upon a wagon, and removed to what is known in ITastings as the “Minneapolis Thresher Building.” One or more witnesses testified that this portion of the twine had not been damaged by water. Other witnesses controverted this, and said that all the twine had been watersoaked. Several witnesses testified that they had had experience with binding twine, and that after being wet it had no commercial value. It further appears that the Herpol-sheimers proffered this twine to the companies at the cost price, or that the twine be placed in the hands of any dealer the companies might select, to be sold by him to the best possible advantage, and the difference between what it brought and its value before the fire determine the damages. If the twine was not damaged, or not damaged to the extent claimed by the plaintiffs, this proposition was entirely- fair, and practically gave the insurance companies the privilege of ascertaining the damage by their own agent.
Relating to false statements in the proof of loss, which is assignment No. 8, the alleged false swearing is based upon the fact that in the proof of loss many of the items constituting it were placed at a sum in advance of the fac
The ninth assignment relates to finding No. 6 by the district court, which is in the following words: “That plaintiffs did not, nor either of them, refuse to submit to examination under oath by any person named by the defendant company, and to subscribe the same.” September 14, 1904, M.. M. Hamlin, an adjuster representing the several companies, made a written request upon the plaintiffs in error for an appraisement of the loss, and this written request also demanded a sworn examination of the Her-polsheimers in the following language: “We further demand that you submit to a sworn examination under oath regarding the cause or origin of said fire, and such other facts and information as may be necessary for the above companies to form an intelligent opinion of same.” Hamlin claims to have made a verbal demand upon both the Herpolsheimers and their attorney, Olmstead, for an examination at his hotel in Hastings, and during his stay there, and he testified that Olmstead refused to allow his clients to be examined under oath. Olmstead testified that he met Hamlin on several occasions, “and that, whenever he suggested or demanded that the plaintiffs in the case should be examined under oath by the insurance company, I made him the tender that they would appear anywhere and at any time, and answer any questions that they would put to us, in the city of Hastings.” It further appears from the testimony of Hamlin that, when talking
In Aetna Ins. Co. v. Simmons, 49 Neb. 811, it is said: “But if the clause in the policy under consideration be one with which the insured must comply in order to recover, then it was incumbent upon the insurance company to fix a time and a place and to name some person authorized by law to administer oaths before whom the examination of the insured should be had. The insurancé company did none of these things. Doubtless the time fixed for the examination must have been within a reasonable date after the company received notice of the fire.. Doubtless the place of the examination would have been at a reasonably convenient place .in the county where the assured resided. It remains to be said of the question under consideration that a fair construction of the clause of the policy is that the insured shall submit to examination under oath at such reasonable place as may be designated by the company or its representative. We reach the conclusion that the insurance company, by failing to demand this examination within a reasonable time after the fire, and by failing to designate a time and place and an officer before whom such examination should occur, has not put itself in a position to urge the refusal of the insured to submit to an examination as a defense to this action.”
The written demand shows for itself that no time or place was named for the examination, no person before whom it should take place is named, and, however willing the parties may have been to acquiesce in the demand, it left them in ignorance of the person before whom they
The eleventh assignment complains of the amount of the judgment entered by the district court, claiming it to be excessive. It would unduly extend this opinion, and be of no benefit to the profession, to review the evidence relating to the amount of loss and. damage. If the question was before us as an original proposition, we would not, perhaps, give judgment for the full amount allowed by the district court. There is, however, evidence amply sufficient to sustain its findings, and in this state of the case we cannot interfere. The case was apparently tried with care, and certainly nothing was omitted on the part of the defendants below in making their defense.
No reversible errors being shown in the record, we recommend an affirmance of the judgments in the several cases.
By the Court: For the reasons stated in the foregoing opinion, the judgments of the district court are
Affirmed.