35 Neb. 701 | Neb. | 1892
Defendants in error recovered two judgments in the court below on a policy of fire insurance; one against the plaintiff in error, the Hanover Fire Insurance Company, in ‘ the sum of $2,533.33^, and the other against the plaintiff in error, the Citizens Insurance Company, for the sum of $l,266.66f. The policy was for the sum of $4,000; two-thirds of said amount being insured by the Hanover Fire Insurance Company and the other one third of said sum being insured by the Citizens Insurance Company. The property insured was a two-story frame roof brewery and a two-story tin roof stone and frame ice house and beer vault, used by the assured for brewing purposes. There was $3,000 additional insurance upon the property. The buildings were totally destroyed by fire.
It is claimed that the court erred in not permitting the witness, Theodore Bauersach, to answer the following-questions propounded to him on cross-examination by plaintiffs in error:
"State when the malt house and the house extending west of it was built.
" How far is it from the. south line of the original building to the north line of the malt house?”
It is contended that the purpose of these questions was to show that the policy had been invalidated by the unauthorized increase of the risk after the insurance was written, by the erection of a structure near the insured premises. There is certainly nothing in the second question, standing alone, or when read in connection with the testimony which had been previously given, which, in any manner, tended to establish that the hazard had been increased. Had the witness answered, and the same had been the most favorable to the parties complaining, we are unable to perceive how it could have thrown any light on the question in controversy. It was quite immaterial when the malt-house was erected. There is no dispute but what it was built before the policy thereon was written. If the plaintiffs in error desired to prove that the structure extending west of the malt house was built after the contract of insurance was written, they should have so framed their
There was testimony before the jury tending to prove that there was no increase of the risk after the policy was written. This phase of the case was submitted to them by the court upon proper instructions, and their findings ought not to be molested. So, also, was the question of arbitration properly submitted to the jury, and their finding was against plaintiffs in error.
It is next insisted that the verdict is excessive. We find in the record evidence tending to prove that the premises insured at the time of the fire were of the value of $8,000 or over. There was a total destruction of the property, except the foundation, which was worth about $200. The total insurance was $7,000, of which sum $3,000 was in companies other than the plaintiffs iu error. As the total amount of the policies did not exceed the entire loss, the jury would have been justified, under the proofs, in assessing damages against plaintiffs in error for the full amount of the policy. True there was evidence before the jury from which they could have found that the total loss was less than $4,000, but they believed plaintiffs’ witnesses on the question of value, and we are not able to say that they were not justified in doing so.
It is finally insisted that the petition does not state a cause of action, because it does not allege that the losses are unpaid. The petition, after setting up the execution and delivery of the policy, and the total destruction of the buildings by fire, alleges that plaintiffs, by reason of said fire and the burning of said buildings, have sustained loss
Affirmed.
