1 S.D. 462 | S.D. | 1891
This is an action instituted by the plaintiff against the defendant insurance company, on a policy of insurance, for loss sustained in the destruction of his machinery, shafting, belting, pulleys, elevator, and fixtures contained in
In considering the first question, it becomes necessary to review all of the others, separately and collectively, in connection with it. The general rule is well settled that, in a jury case, the direction of a verdict is only justified when the evidence conclusively establishes the right of the party in whose favor the direction is given. The test of the right to direct a verdict is whether the court would be bound to set a verdict aside as against the evidence, if rendered against the party in whose favor it was directed. If this would be the duty of the court, the judge need not await the verdict before acting, but in advance may rule the question as one of law. But as verdicts cannot be found on mere conjecture, neither will a shadow or possibility, nor a mere scintilla, stand in the way of ruling the case in favor of the party who shows a substantial right, of which there is no substantial contradiction. If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to evidence, then it is the duty of the court to direct a verdict. People v. Cook, 8 N. Y. 67; Kelsey v. Oil Co., 45 N. Y. 509; Neuendorff v. Insurance Co., 69 N. Y. 389. It was said in Baulic v. Railroad Co., 59 N. Y. 356, by Judge Allen, that “it is not enough to authorize the submission of a question as one of fact to the jury that there is ‘some evidence.’ A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, wruld not justify the judge in leaving the case to the jury.” Quoting from Judge Williams in Toomey v. Railway Co., 3 C. B. (N. S.) 146. In Hyatt v. Johnston, 91 Pa. St. 200, Justice Sterrett says: “Since the scintilla doctrine has been exploded, both in England and this country, the preliminary question of law for the court is not whether there is literally
Proofs of loss were forwarded to defendant shortly after the fire. Two objections are made to these. (1) The inventory was not sufficient. (2) The original bills of invoice, or copies of same, were not furnished. The policy provides that the “assured shall make and furnish to the company an inventory, naming quality, quantity, and cost of each article.” The schedule attached to the proof of loss is as follows:
SCHEDULE.
Machinery. Sound Loss Al-Value. lowed.
Engine and boiler...................................51,800 $ 800
Machinery for 14-in. bucket elevator.................. 500 337 50
Platform, elevator, and machinery.................... 600 400
■* St. French buhr mills................................ 500 400
Two sets grain-dryers................................ 900 700
Three sets bucket elevators........................... 600 400
One hay press and machinerj’......................... 675 475
One hay cutter and machinery........................ 250 200
One bolting-machine................................. 375 250
Shafting, pulley, hangers............................. 500 350
Belting............................................... 250 100
$5,150 00 54,41250
The schedule was amended by adding the figures, above the word “shafting,” 5375, 5262.50; above the word “pulley,” 575, 5532.50; and above the word “Hangers,” 550, 535. It was also further amended by adding the following statement: “List of Other Insurance. Merchants’ Ins. Co., of Decatur, Alabama. Form. . J. M. Peet, doing business as J. M. Peet & Go., Five hundred dollars on machinery, shafting, belting, pulleys, elevator, and fixtures, while contained in the three-story iron
As to the second objection to the proof of loss,— “that original bills of invoice or copies of same were not furnished,” — the policy provides that the assured shall furnish certified copies of all bills and invoices of the property, the originals of which cannot be produced, “wheneverrequired, or as often as required.” The requests and objections of defendant as to the proof of loss furnished are contained in letters dated April 9th and May 22d. In the letter of April 9th, the defendant made no mention of bills of invoice. The letter of May 22d does call attention to the fact that the policy contains a clause, as follows: “The assured shall also furnish certified copies of all bills and invoices, the originals of which cannot be produced. ” The letter further states that “the purported proofs you sent in do not give any such information, but simply say, under one item, ‘sound value,’ and under another, ‘loss allowed.’ We would like to know on what basis the sound value was obtained, and also on what basis the loss was allowed.” The fire occurred on February 24th. The proofs of loss were required by the policy to be furnished within sixty days after the fire, or before April 26 th. Plaintiff furnished the first proofs before April 9th. By letter of defendant on that date, it points out several alleged defects, and returns the proof for correction, but in this letter does not say a word about “original bills or invoices, or certified copies of same” when originals cannot be produced. The plaintiff corrects the proofs, and returns them to the defendant, which were received by it April 18th. Not a word is said by defendant in this particular until May 22d,
It is sometimes very difficult, under the peculiar circumstances of a ca,se, to determine whether a particular thing is a part of the realty or not. It does not depend upon one fact alone, but generally upon several. Among these facts are those of attachment to the -soil, the intention of parties, and those facts which enter in to show where the equities and justice of the case are. The extent and nature of the attachment have much weight in determining whether a given thing is a part of the realty or not. When the connection is slight, property is often considered personal property; whereas, if the connection were close and intimate, it would be considered real estate. A key to the door of a house is a fixture, and a part of the realty, although at the time it may not be at or near the premises to which it belongs. While, on the other hand, annual crops, and a nursery of young trees raised for sale, may not be a part of the realty, but only chattels, although most firmly and intimately attached to the soil itself. Dwelling houses or indeed anything placed by men upon the. soil, if they can be again removed, either in bulk or in pieces, may under some circumstances be only chattels, although they may be ever so firmly attached to the soil. The intention of the parties is one of the strongest elements in determining questions of this kind. Judge Cooley states the rule substantially in these words: ‘ ‘The parties concerned may, by agreement in due form, give to fixtures the legal character of realty or personalty at their option, and the law will respect and enforce their understandings whenever the rights of third parties will not be prejudiced. Thus, a house constituting a part of a realty may be mortgaged or sold separate from the land, and the mortgage or sale be perfectly valid if made in such form as to be sufficient under the statute of fraud.” Cooley, Torts, p. 430. The undisputed facts upon this point of the case under consideration are: The land or lot was first leased by Elizabeth Peet, wife of the plaintiff, December 22, 1880, from an estate. Permission, was given in the lease to remove all improvements at any time,
The next question involved' in the case is whether the ownership of the property changed subsequent to the date of the policy and previous to the fire. The policy contains the stipulation that it shall be void “if any change takes place in the title, interest, possession, or occupancy of the property” without notice to the company. The defendant claims that there was a change in “title” and occupancy, and therefore avoided the policy. The evidence upon the point is that of the plaintiff, Elizabeth Peet, Francis B. Torrens, and Lapp and Hohrhoff, employes of Peet. The plaintiff testifies: “At the date of the is? uing of the policy I was the owner of the property mentioned, and the ownership of that property did not change from the 10th day of October, 1887, to the 24th day of February, 1888. Mary E. Shanley, of England, was the owner of the ground on which the building stood, and when I leased the ground I made a contract of lease with her agents.' The lease to me was for the ground only. I erected a three-story iron-clad building on this ground. The building belonged to me individually, and I had a right to remove it. I assigned the Shanley lease received by me to Elizabeth Peet. Elizabeth Peet did not take possession of said building or property, and I was the owner of the property insured between October, 1887, and March, 1888. The personal projjerty insured by defendant company was in my building at the time of the fire, and I was the owner and in possession of all the personal property at the time of the fire.” Elizabeth Peet testifies: “The lease was made out to me, and was simply for the ground. At that time there were some old buildings, a warehouse I think, on this ground. Mr. Peet purchased the buildings. The old buildings were torn down, and and the new building put up by Mr. Peet. Mr. Peet owned the building. He put into the building machinery of different kinds for the purpose of his business. He owned that machinery. Neither the building nor the machinery was ever owned by me or transferred to me by Mr. Peet, and was never in my possession or under my control. The payments of the ground
It is further contended by defendant that plaintiff subleased the premises in violation of the terms of the policy. The contractof insurance provi des that the policy shall be void if any change takes place in the title, interest, possession, or occupancy of the property, or if the risk be increased by any change in the use or occupation of the building or premises, or by any means whatever. After the issuing of the policy, the plaintiff subleased 40x5^ feet of the building in which the machinery was situated to Schoonmaker & Co. for a storage room, and about 20x110 on Grant street was rented for offices to four other parties. All had written leases, of which the defendant had no notice. The effect of such a clause in a policy of insurance has been frequently considered by the courts. It difiers
The evidence in this case shows that the building in which the property insured was'situated was, at the time the policy was issued, in the possession of the plaintiff, and that during the life of the policy a portion was subleased for storage purposes, and to four other persons for office use. The evidence does not disclose what was the character of the property stored, or what business was transacted in the offices. Still, whether the subletting was of materiality to the risk or not, should have been submitted to the jury, under proper instructions. For the errors above noted, judgment must be reversed, and the cause remanded for a new trial.