52 Neb. 745 | Neb. | 1897
In this action, instituted in the district court of Harlan county by the defendants in error, it was pleaded in the petition, after a statement of the corporate character of the plaintiffs in error, the insurance companies, and their manner of conducting the business, etc., that on March 29,1890, America Stoddard was the owner of a residence building in Republican City, Nebraska, also of some household goods and other personal property then in said building, and all of which was, on said date, for the consideration of the sum of $27 then paid by her, insured by plaintiffs in error against loss by fire, etc., — the building-in the sum of $1,500, and the personal property in the sum of $300; that there was issued to her a policy evidencing such contract of insurance, which she lost, and on February 12, 1892, in consideration of the surrender of the rights of defendant in error under the lost policy, there was issued by the companies, in lieu thereof, another policy evidencing the insurance of the same properties and in similar sums as had been of the terms of the lost policy. The defendant in error Brown Gifford, it was pleaded, was interested in the real property as a mortgagee thereof, and the contract of insurance contained a clause by which any loss was payable to him to the extent of his interest. It was also complained that the insured properties were totally destroyed by fire May 30, 1892, and that the companies had failed and refused to pay the loss after full performance by defendants in error of all the conditions of the policy on their part required by its terms to be performed. The answer consisted of a general denial of each and every allegation of the petition and an affirmative statement that on May 30, 1892, America Stoddard, of defendants in error, was the owner of a dwelling house in Republican City, Nebraska, which was occupied by herself, her husband, and their family as their homestead; that on said date America Stoddard and the family, except the husband, were ab
On April 3, 1894, — the day of the trial, — the plaintiffs in error, on application therefor, were granted leave to amend their answer to conform to the facts. Pursuant to such permission the following was added to the answer': “That by the terms of the said policy, it was agreed that the same should become void and of no force and effect in case the assured should have or should keep upon the said premises, at any time during the continuance of said policy, gasoline in quantities to exceed five gallons at any one time, whether the loss originated therefrom or otherwise; that, after obtaining the policy sued upon, the plaintiffs kept.upon the said premises large quantities of gasoline, to-wit, a barrel of gasoline, in violation of the terms of the said policy, increasing the risk under the said policy, of which these defendants had no knowledge or notice, and to which these defendants never consented, thereby releasing these defendants from any and all liability under the said policy.” It is asserted in the argument in the brief for defendants in error that this portion of the answer cannot be considered; that it was not of the issues in the trial court, etc. The record, as we have before stated, discloses that on the day of the trial leave was granted to amend the answer to conform to the proofs. This must have been after the introduction of the evidence, the purport of
In the body of the policy of insurance was the following clause: “Gasoline Stove Permit. Permission is hereby given for the using of a gasoline stove; the reservoir to be filled by daylight only, and when the stove is not in use. Warranted by the assured that no artificial light be permitted in the room when the reservoir is being filled and no gasoline, except that contained in said reservoir, shall be kept within the building, and not more than five gallons, in a tight and entirely closed metallic can, free from leak, on the premises adjacent thereto.” This is clearly a warranty or an agreement that no gasoline except that in the reservoir of the stove shall be kept in the building, and “not more than five gallons, in a tight and entirely closed metallic can, free from leak,” on the premises and adjacent to the building. “Adjacent” here is used, we presume, in the sense of “near,” “close,” “in proximity,” and applied to the can and its position relatively to the building. During the examination in chief of America Stoddard she testified that among the articles destroyed by the fire was what she styled an “oil pump.” On cross-examination the attorney for the companies drew out some additional facts in regard to this pump and its use, which formed the basis for the amendment to the answer and their claim that the policy had been avoided by the use or storage of gasoline on the insured premises in a manner prohibited by the terms of the policy.
Under an assignment that the verdict was not sustained by the evidence, our attention is directed in the
Q. State if you had an oil pump in the house.
A. Yes, sir.
Q. What was it used for?
A. Used for pumping gasoline.
Q. State to the jury how it was used and how you came to have a pump of this kind.
A. We got gasoline by the barrel and put the barrel in the ground and used the pump for pumping it out of the barrel.
Q. What was the value of the oil pump ?
A. I think it was four dollars. * * *
Q. You say you had an oil pump that you used for pumping gasoline?
A. Yes, sir.
Q. Where did you get this gasoline?
A. We had not used it or the gasoline stove for quite a while. We used wood.
Q. Where was this pump at that time?
A. In the basement.
Q. Wasn’t it being used?
A. Not at that time.
Q. It was not part of your useful household furniture?
A. We intended to use it.
Q. You were not using it at that time?
A. No, sir.
Q. How long since you had used it?
A. I don’t remember.
Q. Well, about how long?
A. I don’t remember.
Q. Six months?
A. Perhaps.
Q. Where had you had this barrel of gasoline buried, in the dirt?
*751 A. We had it when we lived on the farm and when we came to town it was not all used out.
Q. You had it back of thé house somewhere?
A. Between the basement and the creek.
Q. You think it was six months before this you had used the pump?
A. I can’t just say.
It is clear that this does not disclose that the gasoline was stored on the insured premises, or if so, that it was adjacent, near, or close to the building or within the time of the existence of the policy in suit. There was nothing-in the evidence to call for the avoiding of the contract of insurance if it be conceded — which we do not decide— that if a use or storage of the gasoline had appeared not allowable under the terms of the contract, this, in and of itself, would have rendered the policy void. The evidence was too indefinite and uncertain to warrant even an inference or an assumption that the clause of the policy which we have quoted had been violated and to demand its enforcement; hence this assignment is without avail.
Error in the instructions numbered 1, 8, 6, 7, 9, and 10, given at request of defendants in error, are argued separately in the brief. The only assignment of error in the motion for a new trial which refers in any manner to the instructions prepared and asked for defendants in error reads as follows: “9. The court erred in giving-instructions numbered-, given by the court at the request of and upon the motion of the plaintiffs, to which defendants excepted at the time.” This does not designate any particular instruction, — is too indefinite; hence the assignments of error specifically in the petition in error in regard to the instructions requested by defendants in error cannot be considered. (Bankers Life Ass’n v. Lisco, 47 Neb., 345; Hamilton v. Goff, 45 Neb., 340.)
Complaint is made in separate assignments in the petition in error of instructions numbered 14, 15, and 16, given by the court on its own motion. These were
At the close of the introduction of testimony, counsel for plaintiffs in error requested the court “to prepare written instructions for the jury in this case, instructing them upon the issues of law between .the two parties.” This was followed by three special requests. These were not numbered; but, passing over any matters of mere proper form which were lacking, neither in its subject-matter was directed to any issue which at the time the requests were made was mentioned in the pleadings; .hence the court did not err in refusing to charge as requested in the three special requests. At the close of the special requests this appeared: “Defendants [plaintiffs in error] ask the court to prepare and give to the jury written instructions on his own motion covering-all the material questions.” It may be said of tbe two general requests, the language of which we have quoted, that it was the duty of the court “to instruct the jury upon the law of the case whether requested by counsel to do so or not” (York Park Building Ass’n v. Barnes, 39 Neb., 834); and the general requests added no force to the obligation which rested on the court to perform its duty in this particular as in all respects. The trial court
No available errors have been indicated under the assignment in relation to the trial court’s refusal to instruct; hence the assignment must be overruled.
Error was assigned of the reception of certain exhibits by which it was sought to establish that the party who had signed the policy as local agent of plaintiffs in error was in fact such agent; also oral evidence introduced of the same fact. The plaintiffs in error in their amended answer pleaded the existence of the policy and invoked the aid of one of its stipulations, and in so doing recognized that it had been properly issued and by one possessing the full authority to act for them in its issuance. Whether the evidence objected to was competent or not to prove the authority of the party who had acted as local agent, can make no difference since the fact was for the purposes of this suit admitted and the reception of the evidence was in no degree prejudicial.
It is contended that the trial court erred in receiving in evidence the charter of each of the companies; that the same was immaterial. It may be conceded, without an examination or decision of the question of whether the evidential matters referred to were competent for their intended purpose, that, as the issues were presented by the pleadings as they now stand in the record, they were wholly immaterial as evidence. But we cannot say their reception was prejudicially erroneous; hence the assignments directed against the court’s actions in their admissions as evidence will be overruled.
America Stoddard .testified that she had a conversation in the office of the local agent of the companies with George T. Higgins, who appeared as their representative or agent, in which'he offered to pay her $900 in full settlement of the claims for loss, and raised the offer to $1,300. It is claimed that there was no evidence that Mr. Higgins was an agent of the company, or had any authority to act in the matter; and further that such evidence as was received of his authority was incompetent. Mrs. Stoddard and the local agent for the companies were allowed to give testimony on the subject of the agency of Mr. Higgins, which was probably incompetent; but that this was done was not prejudicial for the reason that Mr. Fisher whom, it will be remembered, the general agent of the companies had stated in response to the telegram informing him of the loss, he would put in charge of the matter, and who appeared at Republican City and investigated the loss, stated while there to the attorney for defendants in error that Mr. Higgins “would call in a short time and see about the matter.” It further appeared in evidence that George T. Higgins was a traveling agent in this state for the companies at the time and did go to Republican City and there represented the plaintiffs in error in an attempted settlement of the claims arising under the
It is assigned for error that the trial court allowed a witness to testify what companies composed the New York Underwriters. We cannot discover wherein this testimony was material under the issues. It should probably have been excluded, but its admission was entirely without prejudice to the rights of the complaining-party; hence the error, if any, does not call for a reversal of the judgment.
Of the assignments of error is one directed against the action of the trial court in admitting in evidence a photograph of the insured building as it existed at the time of the issuance of the policy, and up to the time of its destruction by fire. This was introduced in connection with the testimony of the value of the building. It is argued that inasmuch as the loss of the building was total and under the provisions of our law the recovery, if any, must be for the value stated in the policy, .this testimony was wholly without force and should not have been admitted; that its tendency was to confuse and mislead the jury, to enlist the sympathies of the jury in favor of America Stoddard because of her loss of such a house and home as was shbwn in the photograph, and thus prejudice the rights of plaintiffs in error. Suffice it to say of this portion of the evidence, that if its reception was erroneous it was for the reason that it was immaterial, and we are satisfied it was not hurtful to the rights of plaintiffs in error; hence the assignment must be overruled.
Under the assignment that the verdict was not sustained by the evidence, it is urged that the amount assessed by the jury as the value of the personal property destroyed by fire was too large, and, to the amount of $40, unsupported by any evidence. An examination of the evidence bearing on this point discloses sufficient to sustain the finding of the jury in the particular under consideration.
One assignment of error refers to the actions of the trial court of and concerning assessment of an attorney’s
No errors have been presented which call for a reversal of the judgment and it will be
Affirmed.