196 N.W. 553 | N.D. | 1923
This is an action to recover on account of certain policies of insurance against crop failure. Tbe plaintiff in his complaint sets out four different causes of action: the first, on account of a policy of insurance issued to him; the second, on account of a policy issued to one Lorenz Wolf and assigned to the plaintiff; and the fourth, on account of a policy of insurance issued to one Joseph Steiner and assigned to the plaintiff. At the opening of the .case the plaintiff moved to strike out the third cause of action without prejudice, which motion was granted.
The pleadings in the various causes of action and the issues as raised thereby are in ’all essential respects identical with those in the companion case of Rokusek v. National Union F. Ins. Co. heretofore decided, ante, 123, 195 N. W. 300, excepting insofar as they necessarily
At the close of the plaintiff’s case, and again at the close of the whole case, the defendant moved for a directed verdict. No ruling was made upon such motion. Plaintiff had a verdict. Judgment was entered thereon. No motion for a new trial was made, nor was there a motion for judgment notwithstanding the verdict. The ease is here on appeal from the judgment.
The principles of law announced in the Rokusek Case, supra, are applicable in this case and require a reversal of the judgment. The evidence in the case, however, distinguishes it from the Rokusek Case in this; in that case we held as a matter of law that no fraud was established as regards the settlement. In this case, however, we are not prepared to say that there was no evidence, from which such fraud could be found. Hence, defendant is not entitled to judgment notwithstanding- the verdict, but a new trial will be ordered.
