26 S.D. 346 | S.D. | 1910
This was an action brought to- recover $2,000 from the defendant insurance companies, it being claimed that they were jointly liable for same, owing to the destruction of property of plaintiffs upon which plaintiffs claimed they had insurance in such companies. Upon the trial, when plaintiffs rested their case, the defendant German Alliance Insurance Company moved for the dismissal of the action as against it, which motion was granted, and the Northern Assurance Company excepted to such ruling. The Northern Assurance Company then moved for -direction of verdict, and the same was denied. This defendant renewed such motion at the close of the evidence, and it was again denied, and a judgment having been recovered by the plaintiffs, and the court having overruled a motion for new trial, the Northern Assurance Company has appealed to this -court from such judgment and order denying new trial.
The appellant having questioned the sufficiency of the evidence to sustain the verdict and judgment, it becomes necessary
The question of the sufficiency of the evidence to sustain the verdict is fairly raised by the assignments of error, and is the only question we deem necessary for our consideration, thus leaving as the sole matter to be determined the liability of appellant under the facts proven.
It is the claim of the respondents that by the conversation of October 12, 1907, the respondents made Flannigan their special
For cases illustrating the principles underlying this cause, see Davis Dumber Co. v. Scottish Union & National Ins. Co., 94 Wis. 472, 69 N. W. 156; Sheldon v. Heckla Fire Ins. Co., 65 Wis. 436, 27 N. W. 316; 16 Ency. Law, 855; 19 Cyc. 603; Hartford Fire Ins. Co. v. Whitman, 75 Ohio St. 312, 79 N. E. 459. In this last case it was said, citing Elliott on Ins. 31: “In the absence of an oral agreement for insurance prior to the policy, if a policy has been duly executed, but has not passed out of the possession of the insurer or his agent and no payment of premium has been made, the contract is prima facie incomplete, and it rests upon the party who asserts that -there is a contract to show that the policy became operative by the intention, of both parties.” In Davis-Lumber Co. v. Scottish Union & National Ins. Co., supra, it is
The judgment and order denying a new trial are reversed.