20 S.D. 419 | S.D. | 1906
The complaint in this action to recover for the total loss of a stock of general merchandise kept for retail trade and covered by a fire insurance policy was first challenged, after answering to- the merits and at the trial, by objecting to: the introduction of any evidence on the part of plaintiffs for the reason that facts sufficient to constitute a cause of action were not stated therein. The exact contention is that it was nowhere alleged that before the commencement of the action 6o days had elapsed after due notice and proof of loss has been made by the insured and received by the company. Under the statute and uniform decisions of this court a party who fails to test the sufficiency of an amendable complaint by demurrer, but answers on the merits, is not in a position to demand a reversal on the ground that his general objection was overruled by the trial court. Section 136, Rev. Code Civ. Proc. 1903. Stutsman County v. Mansfield et al., 5 Dak. 78, 37 N. W. 304; Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057; McCormick Harvesting Machine Co. v. Faulkner, 7 S. D. 363, 64 N. W.
The contract of insurance made a part of the complaint contains the following provision: “The sum-for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proofs of the loss have been received by the company in accordance with the terms of this policy.” ■ It is alleged in the complaint that, “The plaintiffs have duly fulfilled and performed all the conditions of said policy of insurance on their part and have fully complied with the requirements of said policy. 'The plaintiffs did immediately after said fire give defendant written notice of such fire and plaintiff’s loss thereby, and that plaintiffs did on the 8th day of October, A. D. 1903, and within sixty days after said fire, render to defendant a written statement and proof of loss as mentioned in said policy. That more than sixty days have elapsed since the said fire and the ascertainment by defendant of the amount of plaintiffs’ said loss, and that the whole of the said sum of $1,200.00 is now long past due and unpaid from defendant to plaintiff’s, and that no part of said insurance has ever been paid.” In the absence of a demurrer or an ■objection specifying the omission claimed to be essential to the complaint, the foregoing allegations were properly construed as referring to the time when the action was commenced and equivalent to the statement that the required proofs. of loss had been furnished more than 60 days prior thereto. The parties disagreed as to the value of the insured property and counsel for the defendant contend that the failure to allege that an arbitration was had or an offer to arbitrate was made by plaintiffs renders the complaint insufficient, but this court has recently held that the company must take the initiative step, and have waived that condition of the policy by failing to appoint an arbitrator, and requesting the insured to do likewise, so that the point is determined adversely to the defendant and requires no further consideration. Norris v. Equitable Fire Association, 19 S. D. 114, 102 N. W. 306.
Although the complaint and the policy of insurance both recite that the Waubay Mercantile Company is a copartnership composed of E. A. Nerger and W. G. Elliott and the defendant had ample op
On the 28th day of March, 1903, the plaintiff’s stock of merchandise was insured by the defendant to- the extent of $1,200, its destruction by fire occurred on the 26th day of August, following and proof of loss was duly served October 8th of that year. In procuring the insurance the property was represented to be worth about $10,000, exclusive of fixtures, and in the proof of loss as well as in the complaint in this action, its value was estimated at $8,775, but the defendant denies that such property was ever of any greater value than $2,250, and alleges that in procuring the insurance and making proof of loss plaintiffs were guilty of false and fraudulent representations. In addition to a general verdict in favor of the plaintiffs, the jury found especially as follows: “What was the actual cash value of the said stock of merchandise in question, exclusive of fixtures at Waubay, S. D., on the 27th day of March, 1903?' Answer. $9,838.24. What was the actual cash value of the said stock of merchandise in question, exclusive of fixtures at Waubay, S. D., on the 26th day of August, 1903, immediately before said' fire? Answer. $8,9x8.54. Did the plaintiffs or either of them intentionally and willfully misstate to defendant, the actual cash value-of the said stock of merchandise at the time plaintiffs procured the said policy of insurance from defendant? Answer. No. Did plaintiffs, or either of them, in their statements of loss to- defendant, intentionally and willfully misstate to defendant the actual cash value of the said stock of merchandise at the time of the said destruction-thereof, on the 26th day of August, 1903? Answer. No.”
From the testimony of E. W. Reick we quote as follows: “My business in 1902, and January in 1903, was general merchandise. Since January, 1903, I have been in the general merchandise bus
George B. Baselle was shown to be an experienced dealer in a ■similar class of merchandise and had seen the stock in question ■daily from the time it was insured until the loss occurred, and Iris testimony is in 'part as follows: “I had run a general store in the same building. I made an examination of this stock about the iolh day of February, A. D. 1903, and took an invoice. We added up the amount of goods he had received and subtracted the amount of cash he had taken in. This was about a week or two beforé the sale to plaintiffs. I saw the stock of goods at the time'the mercantile company bought them, .and I saw them again for the last time about the 1st of August, A. D. 1903. . At that time, August 1, 1903, the stock was larger than in February, when I and Mr. Reick took the inventory. It was a marketable stock of goods.”
The ioregoing excerpts from the record make the inference irresistible that this extensive stock of marketable merchandise was
From a careful examination of the entire record we are convinced that no errors of law occurred at the trial, either in the admission of evidence or in the court’s charge to the juiy, and the judgment appealed from is affirihed.