75 Minn. 266 | Minn. | 1899
This was an action to recover upon a “hail insurance policy,” one provision of which was that,
“In case of loss by hail to the crops insured, the assured shall mail a written notice to the company at its office in the city of St. Paul, Minn., within forty-eight hours after the time of such loss, stating the day and hour of the storm, also the probable damage to each part of the crops insured.”
So far as material for the purposes of this appeal, the defense was that the insured had not given notice of loss in accordance with this provision of the policy.
The policy contained a warranty that the insured was the owner of all the land upon which the crops covered by the policy were growing, but a breach of this warranty, if any, was a matter of defense, and no such defense was pleaded.
When the evidence closed the defendant moved the court to direct, a verdict in its favor, but the court denied the motion and submitted the case to the jury, which found a verdict in favor of the plaintiff. Thereupon the defendant made a motion, not in the alternative for judgment notwithstanding the verdict, or, in case that should be denied, for a new trial, but merely for judgment notwithstanding the verdict. The court denied the motion, and from the judgment entered upon the verdict the defendant appealed.
Originally at common law, judgment notwithstanding the verdict could only be granted in favor of the plaintiff, the remedy in favor of the defendant being to have the judgment arrested; but either by statute or by judicial relaxation of this rule, judgment not
By enacting Laws 1895, c. 320, the legislature was not creating a new remedy, but merely extended, as has been done in many other states, the common-law remedy to cases where, upon the evidence, either party was clearly entitled to judgment. In thus extending the remedy it must be presumed that the legislature intended it to be governed by the same rules which applied when it was granted upon the record alone; that is, that it should not be granted unless it clearly appeared from the whole evidence that the cause of action, or defense, sought to be established' could not, in point of substance, constitute a legal cause of action or a legal defense.
This court has acted on this construction of the statute and refused to order judgment even where there was a total absence of evidence on some material point, but where it appeared probable that the party had a good cause of action or defense, and that the defect in the evidence could be supplied on-another trial. This is just such a case.
From the record it appears probable that the plaintiff has a good cause of action and that the defects, if any, in the evidence, are largely technical and could be supplied on another trial. The alleged defects in the evidence suggested are óf the following character: that the letter from plaintiff’s father to Kenaston was not formally introduced in evidence, that there was no evidence that the letter from Kenaston to the defendant was ever mailed, and that there was no evidence that the person who came to adjust the loss was McClure, or that McClure was at that time defendant’s adjuster.
The statute permits a party to make his motion in the alternative.
Judgment affirmed.
