73 Neb. 50 | Neb. | 1905
This is an action on a policy of insurance against fire issued by the Phelps County Farmers Mutual Insurance Company, on the property of plaintiff on December 31, 1892. The cause comes here a third time for review by this court. The first opinion was rendered on November 20, 1901, by Pound, C., and is reported in 63 Neb. 21.
At the second trial of the cause in the district court, the defendant insurance company adduced evidence showing conclusively that all the property covered by plaintiff’s policy of insurance was not destroyed by the fire, and that he had paid his subsequent assessments and the one of which he was in arrears at the time of the fire, with full knowledge that the company insisted on the forfeiture of the policy for the time that he was in arrears; and this being a right reserved in the policy, we held on a second hearing in this court, in an opinion reported in 66 Neb. 590, that it was error under this proof to direct a verdict in favor of plaintiff, although there was no dispute as to the amount of the loss sustained. On a third trial of the cause, under evidence substantially the same as that contained in the record at the second hearing of the cause in this court, the trial judge directed a verdict for defendant, and plaintiff again brings error to-this court.
Now, before considering plaintiff’s numerous allegations of error, it is well to take a retrospective view of this cause in the light of our former decisions, and determine what, if any, questions now arising have already been determined in such a manner as to be controlled by the rule of “the law of the case.” At the first hearing it was determined that, if all plaintiff’s property covered by the policy was destroyed by the fire, the acceptance of subsequent assessments by the company amounted to a waiver of his default in the payment of his first assessment. At
To reach a proper conclusion on the action of the trial court in excluding the new evidence offered by plaintiff at the last hearing, it is necessary to examine the description of the property insured under the policy and application. These conditions are as follows:
“The application provides: ‘Horses, mules, colts, cattle, wagons, buggies and harness insured on the premises and also when temporarily removed from the premises.’ The policy provides as follows: ‘The above named company agrees to insure Ezekiel Johnston * * * against loss or damage by fire or lightning to the amount of $2,165 on the following described property for the term of five years from noon on Dec. 31, 1892. * * * On farm implements and machinery, $200; on wagons, buggies and harness, $100; on grain in granary, crib or dwelling, $1,000; on hay, $200; situated on sec. 27, twp. 5, range 18, Phelps county, Neb.’”
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.