158 N.W. 450 | S.D. | 1916
Plaintiffs crops were insured by defendant against loss by hail. Plaintiff’s evidence tended to show such loss. Defendant’s 'evidence tended to show loss :by wind and lain. Plaintiff .promptly notified defendant of the loss, and shortly thereafter defendant’s adjuster made an investigation and reported, “Nfo loss allowed.” The secretary of the defendant testified, “We denied from the first that there ever was a loss.”' Trial by jury was had, which returned a verdict' for plaintiff in ■the sum of $909.65. Prom the judgment and an order denying a new tidal, defendant appeals.
“Q. During the time you were eating at Mrs. Stockwell’s and when Charles ■ Stockwell was present, was there any conversation between yourself, Mrs. Stockwell, or diaries Stockwell about the way that grain was stacked?”
The thresher had previously given testimony tending* to show that a part of the grain had rotted on account of bad stacking. The purpose of the above question was evidently tO‘ impeach the the testimony of plaintiff wherein he testified that the stacking was done in a good and husband-like manner; but in the examination of plaintiff his attention was not called to this conversation, and no foundation was laid for the impeaching testimony. The
“There was no evidence to show how much it cost in labor or material to care for the grain or bring what was left of it to maturity, or how much it cost to cultivate or keep the corn and otherwise prepare it for market.”
Courts will take judicial notice of the fact that, in so far as small grain is concerned, there is no cost to the farmer in bringing it to maturity after it is eight or ten inches high, as this grain 'was at the time ,1-- ^ail. In regard to the corn, the evidence showed that it -was from six to eight inches high at the time of the hail, and that there were three or four stalks to the hill. After the hail, there were one or two 'stalks to the hill. It is not contended that there is any less cost of cultivating a patch of corn with only one or two stalks to the hill than a patch with three or four stalks to the hill. The trial court instructed the jury on this point as follows:
“If you find for the plaintiff, you may assess his damages at the market value of the crap destroyed, if 'any, less the expense of harvesting and preparing it for market. The total damage not to exceed the amount claimed in the complaint which is $1100.”
No exception was taken to this instruction. The point is evidently an afterthought. Appellant’s contention is too attenuated to deserve further consideration.
The judgment and order denying a new trial are affirmed.