40 Neb. 1 | Neb. | 1894
This is an action brought by E. B. Richardson, as assignee of C. E. McCarty & Co., upon a policy of fire insurance on a stock of general merchandise. From a judgment in favor of the plaintiff below for the full amount covered by the policy the defendant brings the case to this court for review.
At the close of the plaintiff’s testimony the defendant requested the court to direct the jury to return a verdict in its favor, for the reason that no evidence had been introduced tending to show that the plaintiff or his assignors had furnished to the company the preliminary proof of loss, as required by the provisions of the policy. The court refused to so instruct the jury, to which an exception was taken, and the defendant introduced testimony in support of the defenses set up in the answer. This ruling is the first error assigned.
The policy contained the usual stipulation that the assured, in case of loss or damage by fire, should, “within sixty days, render an account of the loss or damage, signed and sworn to, stating how the fire originated, giving copies of the written portions of all policies thereon, also the actual cash value and ownership of the property, and the occupation of the premises, and incumbrance, if any, and whenever required the assured, his, her, or their agents or servants wherever, and as often as required, shall submit to
Again, the defendant, when it came to make out its case,' established that such proof of loss was furnished by the plaintiff’s assignors and actually introduced the original statement of loss in evidence, thereby supplying the omission in plaintiff’s testimony, and curing the error, if any, in the failure of the court to direct a verdict for the defendant. It is said it should not have that effect, because the preliminary proof of loss was not delivered to the
It is also urged that the preliminary proof of loss does not comply with the requirements of the policy. This objection is unavailing, as the proof furnished was never returned to McCarty & Co., or their assignee, for correction, but was retained by the defendant and by it produced on the trial. True, the company on December 27, in acknowledging the receipt of the paper, stated that it did not comply with the terms of the policy; but the only objection pointed out in the letter was that the same was not delivered within sixty days. If the proof was defective in form or substance, and the company intended to contest its liability for that reason, it should have been returned to the insured with a statement of the particulars in which the same was considered defective, in order that the defect might be corrected. Having failed so to do, the company will not now be heard to say that such jproof was insuf
Another defense relied on here is that the suit was prematurely brought. The policy contained a stipulation that “the amount of loss or damage should be due and payable at the office in Sioux City, Iowa, after satisfactory proofs of the same, as required hereinafter, shall have been made by the assured under the conditions and limitations of this policy, and received by the company at its office, unless the property be replaced by the company, the company reserving the option to take the whole or any part of the personal property specified, at its appraised value, or to repair or rebuild, or to replace any property burned or damaged with other of like kind or quality, within a reasonable time, on giving notice of its intention so to do within sixty days after the filing of the proof of loss.” It was admitted on the trial that the action was commenced on February 18, 1891, which was less than sixty days after the preliminary proof of loss was made. It is contended that plaintiff in error, under the clause of the policy quoted, had sixty days after proof of the loss was delivered to the company in
In Norwich & New York Transportation Co. v. Western Massachusetts Ins. Co., 31 Conn., 561, it was held that the denial of all liability and refusal to pay the loss was a waiver of the stipulation in the policy allowing the insured sixty days within which to pay the loss, and that the suit could be maintained on the policy at once. To the same effect are Phillips v. Protection Ins. Co., 14 Mo., 220; Allegre v. Maryland Ins. Co., 10 Md. App., 408.
Counsel contend that no portion of the premium ou the policy had been paid at the time of the fire; hence, it is urged there can be no recovery. The policy in suit provides: “This company shall not be liable by virtue of this policy, or any renewal thereof, until the .premium therefor shall be actually paid to this company. Nor shall this company be liable for any loss under this policy occurring at a time when any note, or part thereof, given for a part or whole of his premium shall be due and unpaid.” When the policy was delivered the premium was neither paid, nor was any note given therefor. While the policy recites on its face the payment of $60, the full amount of the premium charged on the risk, as a matter of fact the agent issuing the policy extended to the insured credit for the premium. Some time before the fire, Thomas McCarty, one of the firm of McCarty & Co., went to C. I. Rafter, who executed the policy on behalf of the company, and was then its authorized agent, and offered and tendered to him the full amount of the premium due. Mr. Rafter, who was at that time preparing to take the train at Ulys
The seventh instruction given to the jury in the suit at bar, by the court on its own motion, reads as follows:
“7. The jury are instructed that it was incumbent on the plaintiff, under the terms and conditions of the'policy issued by defendant to him or his assignee, that the premium must have been paid before loss, in order to hold the defendant liable on the policy; and if they find from the evidence that premium was tendered, or that C. E. McCarty & Co. offered to pay the same to the agent of the defendant, and that for any reason the same was not accepted at that time and a loss occurred after the tender or offer of payment of premium, the defendant would be liable for that loss.”
This instruction, when considered in connection with the other portions of the court’s charge, was not prejudicial to the rights of the plaintiff in error. In fact we are inclined to the opinion, after a careful perusal of the testimony in the bill of exceptions, that the court would have been warranted in directing the jury to return a verdict for plaintiff.
On the trial, J. T. McCarty, of the firm of C. E. McCarty & Co., on being interrogated as to the value of the stock of goods covered by the policy at the time of the fire, answered “ $3,500 to $4,000.” The defendant thereupon moved to strike out the answer of the witness “for-the reason that it is not competent for the witness to state in this wholesale way what the value of the goods was.
The case of Schlesinger v. Springfield Fire & Marine Ins. Co., 26 Jones & Spencer [N. Y.], 112, cited in the brief of plaintiff in error, is not in point upon the question we have just been considering. That was an action upon an insurance policy and one of the plaintiffs was asked, “What was the amount of loss and damage sustained by the plaintiffs by reason of the fire?” The court was clearly right in holding that the question was improper, as it called for the conclusion of the witness, and invaded the province of the jury. It was for the triers of fact to determine from all the evidence the amount of the damages which the plaintiffs sustained.
J. T. McCarty, a witness for plaintiff, was asked on cross-examination: “Who made the application for this insurance?” The plaintiff objected for the reason that it was immaterial, incompetent, and not cross-examination, and for the further reason that it had not yet been shown that an application had been made. The objection was sustained. It was not a proper examination, as the witness had not been questioned on the subject of an application. He had merely testified to the fact of the delivery of the policy to the firm of C. E. McCarty & Co. The question also assumed that an application had been made, when there was no evidence on the subject, and for that reason was objectionable.
Such of the rulings of the court on the admission and exclusion of testimony as are properly raised by the bill of exceptions we have carefully examined, and find no reversible error therein. The verdict is in accordance with the evidence. The judgment is right and is
Affirmed.