62 Neb. 213 | Neb. | 1901
For brevity tbe parties will be referred to as “plaintiff” and “defendant” as they appear in tbe court below.
This action was brought by plaintiff on appeal from tbe county court to tbe district court of Holt county, against tbe defendant, tbe basis of tbe action being an insurance policy issued by tbe defendant to tbe plaintiff, dated April 26, 1892, and expiring April 26, 1897. Tbe consideration
The answer admitted the issuance and delivery of the policy, but alleged that the note given for the premium contained a stipulation that the company should not be liable for any loss or damage which might occur to the property while the note or any part thereof was past due and unpaid; that at the time of the alleged fire the note was past due and unpaid, and still remains unpaid; that the policy, by its terms, became suspended and inoperative, and no liability attached to the defendant thereunder. The policy contained a stipulation as follows: “If a note be given for the premium on this policy, or any part thereof, it is mutually agreed and understood by and between the assured and this company, that in case said note, or any part thereof, be not paid at maturity, this policy shall be suspended, inoperative, and of no force or effect, so long as such note, or any part thereof, remains overdue and unpaid; and in case of any loss of said property, either partial or total, while said note, or any part thereof, remains overdue and unpaid, this company shall not be liable for such loss, nor shall the payment of said note, or the receiving or retention of the proceeds, or any part thereof, by this company, render it liable for any loss occurring while said note, or any part thereof, remains overdue and unpaid, nor shall such payment or retention be construed to be a waiver of any condition in this policy or application. The payment of the premium, however, revives this policy and re-instates the same for the remainder of its term only.”
It will not be necessary to consider all of the numerous errors alleged in the petition in error; such as are not argued in the brief will be deemed to have been waived. One of the assignments relates to the overruling of the motion to strike the reply from the files.
Immediately after the jury was sworn, the defendant called the county judge as a witness, presumably to show by oral testimony that the issue presented by the pleadings was different from what it was in the county court. Upon objection to the examination of the witness on the ground that its purpose was not disclosed, defendant made an oral motion to strike the reply, for the reason that the pleadings presented a new issue from the one tried in the county court; but before the motion was passed on, or any testimony taken in support thereof, and apparently immediately following the motion to strike the reply, the defendant suggested a diminution of the record. A colloquy followed between the court and counsel for both sides, at the conclusion of which the court made a ruling: “The order is granted and I will look up the question of jeopardy.” This is the only ruling disclosed by the record on the motion to strike the reply; and to this ruling no exception was taken by the defendant. The order of the court is indefinite as to its application to the motions then before the court, but it referred to the diminution of the record; otherwise there would have been no occasion to have proceeded with the trial upon the theory the case was tried. It would have been an easy matter, by comparison of the pleadings in the county court with those in the district
Assignment of error No. 4 is, “In permitting the trial of issues which were not raised in the trial in the county court, where the case originated.” Nowhere in the record is it shown what the issues were in the county court, nor is it shown in what respect the issues tried in the district court were different' from those that were tried by the county court.' There is, therefore, nothing before us from which it can be determined whether the issues were the same or not. Defendant started to show the difference, if any, at the entrance of the trial, but did not persevere long enough to prove any difference. At the-conclusion of the evidence defendant made an offer “to show that the issues in the case and tried in this court are different and other issues from the issues tried in the court below.” But the offer did not inform the court in what respect the issues differed, nor what the issues were in the court below, nor any facts from which such conclusion could be drawn. The offer was a mere conclusion — the facts should have been stated so that the court could say from them whether a new issue was presented. From the record made, this court is unable to say that the offered testimony, if received, would have shown any difference. “Exceptions to the exclusion of testimony are unavailing unless there be tender made of the proof which it was sought to elicit.” Hambleton v. Fort, 58 Nebr., 282; Union P. R. Co. v. Vincent, 58 Nebr., 171.
Defendant insists that on the pleadings and evidence it
The contention of defendant, that it was entitled to a verdict on the pleadings and evidence, is also supported by an exhaustive analysis of the evidence. There was a difference in the testimony given by the plaintiff and that given by the principal witness for defendant concerning the severance of the policy and the application of payments. In many details they were in complete harmony; and both agreed that the company was to approve the request of plaintiff before it would become operative, and the agent was to communicate from Lincoln, after submitting the question to the company. He did communicate in a letter, omitting formal parts, as follows: “Frank Dobney — Dear Sir: Enclose your policy. Everything O. K. Note extended to fall due same time as last one.” The letter is so indefinite that it will sustain almost any contention based on the policy. Plaintiff testified that when the payment of $10 was made, no instruction was given as to how it should be applied; that later, when the agent adjusted the loss on a steer which had been killed by lightning, that plaintiff wanted the amount, $17.86, applied on the note, so that the house would be insured anyhow; that the agent thought it would be all right to apply the payment that .was already paid on the house, and that he would write when he got to Lincoln. He was then asked:
Q. What did he say about insurance on the dwelling-house, tin $800?
A. He said it would be all right.
Q. Well, explain how it would be all right.
A. If it would be satisfactory to the company, and he thought it would. To apply the payment that was already
Q. What did he say about the premium on the house?
A. Sixteen dollars he said.
Q. Now, what was to be done after you had paid the premium on the dwelling-house, the $16 and interest; what was to be done with the balance?
A. It was to be applied on the rest of the insurance.
The testimony of plaintiff tending to establish a severance of the contract, the conversations with the agent, and the letter, together with the testimony of the agent, that he reported to the company all that was said between plaintiff and himself, and that the letter was written in pursuance of the direction of the company, were all matters presenting an issue of fact, upon which there might be a difference of opinion, and in submitting the issue of a severance of the contract to the jury we think the court acted wisely.
Defendant further urges that the clause in the policy suspending it, while the premium note is past due, is reasonable and just, and that nothing short of full payment or waiver of the stipulations can remove the suspension caused by the failure to pay the note. Granting this to be true, it can not avail defendant, for the question was fairly submitted to the jury as to whether the contract had been severed and whether the full premium upon the dwelling had been paid. The jury resolved these questions in favor of the plaintiff.
Where the proofs before the jury are conflicting, the verdict will not be disturbed unless clearly not sustained by the evidence. Van Housen v. Broehl, 59 Nebr., 48; Chicago, M. & S. P. R. Co. v. Johnston, 58 Nebr., 236; Louis v. Union P. R. Co., 48 Nebr., 151. In our view, there was evidence sufficient to sustain the verdict.
Defendant also contends that the verdict was excessive, —the full amount of insurance upon the house destroyed, when there was a small sum still due upon the note originally given for the policy. This point might be well taken
The district court, on the day the motion for a new trial was overruled, entered an order finding there was due the plaintiff from the defendant a reasonable attorney’s fee in the case in the sum of $150, and taxed this amount as part of the costs. This order was made under the authority of section 45, chapter 43, Compiled Statutes, which provided: “The court upon rendering judgment against an insurance company upon any such policy of insurance shall allow the plaintiff a reasonable sum as an attorney’s fee, to be taxed as part of the costs.” A very able and exhaustive argument has been made by counsel for defendant, assailing this section of the law as unconstitutional, and to the mind of the writer, at least, the argument seems to be founded upon good reason. The question, however, can hardly be said to be an open one in this state. The precise question has been decided by this court and many of the authorities cited in the brief of defendant were considered and reviewed by the court. Lancashire Ins. Co. v. Bush, 60 Nebr., 116, in which Judge Sullivan, referring to the decisions of our own court, says: “These decisions are vigorously attacked, but we are convinced, as the result of further investigation of the subject, that they are sound and should be adhered to. There is nothing in the constitution of the United States, or of this state, which forbids classification of subjects for the purpose of legislation. Barbier v. Connolly, 113 U. S., 27 [5 Sup. Ct. Rep., 357, 28 L. Ed., 923]; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96 [19 Sup. Ct. Rep., 609, 43 L. Ed., 909]; State v.
For the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.