35 Neb. 351 | Neb. | 1892
The defendant in error commenced six different actions in the district court of Lancaster county on separate policies of insurance by the plaintiffs in error to recover for damage by fire to a stock of goods covered by said policies. By agreement of parties the several actions were consolidated and tried together, resulting in verdicts against each -of the companies named. A motion for a new trial was made by each oí the defendants below, which motions were overruled and judgments entered in accordance with the verdicts, and said cases removed to this court by petitions in error. The pleadings are the same in each ease, except ns to the amount of damage claimed. The first error alleged in the brief of plaintiffs in error is the overruling of their motion to require the plaintiff below to separately state and number his causes of action. Each petition contained two causes of action, one on the policy of insurance -and the other for money expended for clerk’s and appraisers’ fees. The ruling complained of, if erroneous, is error without prejudice, since, on the submission of the case, the .jury were instructed that there could be no recovery for
Second — It is claimed that the district court erred in denying the motion of defendants below to strike out the seventh paragraph of the petition, as follows: “That immediately after said fire the different insurance companies who had policies and risks upon the aforesaid goods and property were notified and informed of said fire, and that each of said companies, as well as defendant, sent or had duly authorized agents to come upon the said premises and adjust the loss caused by said fire and took an inventory of said goods and property, and said defendant, after taking said inventory, and all of said other insurance companies, insisted that plaintiff’s loss was only $2,000, when in, truth and in fact it was and is $8,222.53, and that they thereby waived any proof of loss as required by said different policies and by the policy of the defendant.” The foregoing allegation should be construed in connection with the eighth paragraph as follows: “That shortly after the said fire the several agents and adjusters of the said defendant, and all companies having policies on said stock with defendant, came to the city of Lincoln and, at their request and demand, took charge of the goods and stock, as well as the books of plaintiff, and the plaintiff chose-one person, and said agents and adjusters the other, and they proceeded and took an inventory of said goods for the purpose of ascertaining how much the loss of plaintiff was, and for a period of over one month the said agents and adjusters had possession and control of said books stock, and property, and the plaintiff aided and assisted them all that he could, and the inventory was taken in duplicate, one was kept by the plaintiff and one by the defendant and his other insurance agents and adjusters; and the inventory so made by plaintiff and defendant found that
The same question was fully considered by this court in the case of Billings v. The German Ins. Co., 34 Neb., 502. The conclusion there reached, which we believe to be in accord with the clear weight of authority, was that similar provisions in a policy of insurance for forfeiture will be held to have been waived by the insurer when it is informed of the fact by reason of which the forfeiture is claimed, but thereafter continues to treat the contract as binding and induces the insured to act in that belief. , The facts alleged in this case bring it clearly within the rule above stated. If, as alleged, the insurance companies, by their adjusting agents, soon after the fire, demanded and obtained possession of the stock of goods in question, and also the books of the insured, and retained possession thereof for a month, being, during all of said time, engaged, with the assistance of the latter, in ascertaining the amount of the loss, such facts would amount to a waiver of the proof of loss and excuse the making of such proof in the manner and within the time specified in the policies. The authorities cited in Billings v. The German Ins. Co. fully sustain this proposition. Also in the answers filed in the district court it is charged that the amount of loss was by mutual agreement submitted to arbitration, and that an award was made which is pleaded as a defense. This, we think, is a waiver of the proof of loss provided by the policies. (Carroll v. Ins. Co., 72 Cal., 297; Bammessel v. Ins. Co., 43 Wis., 463.)
Fourth — A further objection is made that the time of the purchase of the so-called Yick bill was too remote for the purpose of proving value at the time of the fire January, 1889. There is nothing in the objection made. A considerable part of the stock had been destroyed by the fire and the portion saved was badly damaged. Plaintiff below was for that reason properly permitted to show the amount and value of the original stock and subsequent purchases and to deduct the amount of sales since he commenced business in October, 1887, and value of goods remaining after the fire. This was proper, and the value of the goods in the Yick bill was therefore a proper subject for consideration by the jury.
Sixth — Defendant in error was asked, on cross-examination, how much he paid Vick for the goods bought of the latter in October, 1887, to which objection was interposed and sustained on the ground that it was immaterial, which ruling is now assigned as error. The ruling in question could not have prejudiced the plaintiffs in error, for the reason that the witness had already testified on direct examination that he could not give the value of the goods without referring to the book above mentioned. Also, on cross-examination he had testified without objection as follows:
Q,. What did you pay for the goods you bought in that book (referring to the memorandum above mentioned)?
A. I can’t remember.
Q. About how much ?
A. I can’t remember.
Q. About what did you pay for them?
A. I don’t remember; I cannot tell you.
We have no reason to infer that further cross-examination on that subject would have profited the plaintiffs in error, and cannot say that the court erred in the limitation imposed.
Seventh — Defendant in error was asked on direct examination what per cent should be added to the cost price of goods for freight, unpacking, marking, and exposing them for sale, to which objection was made on the ground that it was incompetent and immaterial. The cost of handling,
Eighth — In the several answers it was alleged that all of the questions involved had been submitted to arbitrators, who made an award, and which is one of the defenses relied on. This allegation is denied by the defendant in error, who alleges in his reply that the so-called arbitrators were selected merely for the purpose of making an inventory of the goods remaining after the fire. This question was submitted to the jury under instructions which fairly state the law. The finding for the defendant in error on that issue cannot be said to be so decidedly against the weight of evidence as to call for action by this court. Nor are we referred to any finding or report having the semblance of an award. The only return made by the arbitrators or appraisers is entitled an “ Invoice of Stock of Solomon Gotthelf taken January 19, 1889.” It comprises fifty-four pages of a book, which in three columns show, respectively, the items appraised, the cost thereof, and the damage thereto. On some of the pages are figures indicating the per cent deducted on account of damage. There is a footing in pencil mark on each page of the column, indicating the cost and the damage, but no total appears of either. An award will be held void for uncertainty when no amount is named, or means indicated by which it can be found. (Waite v. Barry, 12 Wend. [N. Y.], 377.) The finding in question includes only the stock as it appeared after, and makes no. reference whatever to the value thereof before the fire; We think the jury were warranted on the evidence before them in finding for defendant in error on the question of arbitration.
Ninth — Exceptions were taken to the refusing of instructions asked and the giving of others by the court on its own motion. The instructions in question are too nu
The objection to the instruction set out is that the court misconstrues the agreement referred to therein. In this contention we agree with counsel for plaintiffs in error, as the agreement in question relates to the first cost of the goods only, while the court seems to construe it as referring to the value thereof. The instruction as a whole, however, fairly states the law, and the jury could not have been misled by the direction contained therein. By it they are in effect directed to determine the value of the goods on hand at the time of the fire from all the evidence before them, including cost thereof.
Tenth — Finally it is contended that the damage is excessive. We have carefully read over the voluminous
Affirmed.