41 Colo. 323 | Colo. | 1907
delivered the opinion of the court:
The same questions are presented in each of these cases, and we will, therefore, dispose of them in one opinion.
The first contention is that the court should have granted a continuance of the trial, asked for by defendants, appellants here. It appears that Charles F.'Hawkins was a material witness on behalf of the defendants and that he was ill and unable to attend the -trial. Because of Ms absence, defendants requested a postponement and filed an affidavit wherein were stated the facts which Hawkins had been expected to testify to. Plaintiff objected to a continuance and admitted that if the witness, Hawkins, were present he would testify as stated in the affidavit. When this was done the application for a continuance upon that ground was properly overruled.—Code of Civil Proc., § 177; Baldwin Coal Co. v. Davis, 15 Colo. App. 371; Florence Oil Co. v. Oil Well Supply Co., 38 Colo. 124.
It also appeared by the application for the continuance that -Sylvester G. Williams, attorney for defendants, was ill and unable to attend the trial. The defendants appear to have been represented by
In the case of Reynolds v. Campling, 23 Colo. 105, it appears that the appellant at the time of the trial asked for a continuance because of the absence of Mr. Hughes. This court said:
“Perhaps Mr. Hughes was more familiar with the controversy than Mr. Dines, and for this reason could have been of more assistance to the defendant, but this would not entitle defendant to a continuance as a matter of law. A large discretion is vested in the trial courts with reference to such matters, and this discretion should be exercised according to the circumstances of each case.”
Other authorities to the same effect are: Byers v. McPhee, 4 Colo. 204; Roberts v. People, 9 Colo. 458.
We cannot see that the defendants were prejudiced by the action of the court, or that there was any abuse of the discretion vested in the court in such cases.
Defendants requested a new trial. This application was based upon several grounds, only two of which are argued in the brief, namely, that defendants were prejudiced because of the unavoidable absence of Mr. Williams, the counsel, and it is eon-tended that however able, the counsel might have been who represented defendants at the trial, he was not as well informed as to the particulars of the case as Mr. Williams. As has been seen in, the case of Reynolds v. Campling, supra, this does not afford defendants the right to a continuance as a matter of law, and, of course, after the application for a
The insurance policies upon which these actions were brought contained a clause to the effect that in the event of a disagreement as to the amount of loss, the same should be ascertained by two competent and disinterested appraisers, the insured and the company each to select one, and those two to select a competent umpire, and, in the event of the disagreement of the two, the differences to be submitted to the umpire. This was not done. There is evidence tending to show that the defendants appointed an appraiser residing at Pueblo, and that the plaintiff appointed an appraiser residing at Rocky Ford, the city in which the loss by fire was sustained. For some reason, which is not apparent, these two appraisers failed to meet, the defendant companies contending that they received no notice of the appointment of the plaintiff’s appraiser, and plaintiff contending that he had notified them. After several weeks the plaintiff repaired the damage to the property in order to avoid the vacating of the premises by his tenant, and then brought this action. Defendants contended that the plaintiff should not have been permitted to recover in this action because the matter should have been submitted to the appraisers to determine the amount of the loss before the action was brought.
The court’s instructions to the jury were to the effect that if the failure to have the damages ap
The policies also contained a provision that in case of loss by fire the insured should, within sixty days thereafter, render a statement to the company, signed and sworn to by the insured, and containing a statement called the proof of loss. This was not furnished, and it is contended that they should not be held to pay the loss because of the absence of such statement. At the time of the fire the plaintiff immediately notified the local agents of the companies and they, by. wire, notified the companies themselves at their home offices. Shortly after that, efforts were made upon the part of the plaintiff and representatives of the defendants to determine the amount of the loss, adjust the same and arrive at a settlement. This they were unable to do. The defendants then appointed their appraiser and the plaintiff appointed his, as hereinbefore stated.
It was held in Hartford Ins. Co. v. Smith, 3 Colo. 425:
“There must be a substantial compliance with the terms of the policy in furnishing the preliminary proofs before the assured is entitled to any indemnity in the ease of loss, unless the company waived the defects in the proofs or waived the proofs altogether by putting a refusal to pay on other grounds. ”
The refusal to pay in this case was not because of the absence of this statement or proof of loss, but because it was contended that the insured over-estimated the amount of his loss, and, having based the refusal upon grounds other than the absence of the
We are unable to find any error in the proceedings in these cases, and, therefore, are of the opinion that each of the judgments should be affirmed.
Affirmed.