Aetna Insurance Co. v. Simmons

• Decision Date: 02 December 1896
• Docket Number: 6880
• Citation: 69 N.W. 125,49 Neb. 811
• Parties: AETNA INSURANCE COMPANY v. W. A. SIMMONS
• Court: Nebraska Supreme Court

69 N.W. 125

49 Neb. 811

AETNA INSURANCE COMPANY v. W. A. SIMMONS

No. 6880

Supreme Court of Nebraska

December 2, 1896

ERROR from the district court of Dawes county. Tried below before KINKAID, J.

AFFIRMED.

Sylvester G. Williams and George T. H. Babcock, for plaintiff in error.

C. H Bane and D. B. Jenckes, contra.

OPINION

RAGAN, C. J.

This is a suit on a fire insurance policy brought in the district court of Dawes county by W. A. Simmons against the AEtna Insurance Company, hereinafter called the "insurance company." Simmons had a verdict and judgment. The insurance company prosecutes a petition in error.

1. The insurance company in the motion filed by it for a new trial assigned among others the following grounds: "The verdict is contrary to the instructions given by the court on its own motion. The court erred in refusing to give the instructions asked for by the defendant. The court erred in refusing to give the third, eighth, eleventh, thirteenth fourteenth, sixteenth, seventeenth, nineteenth, and twenty-first instructions asked for by defendant. The court erred in giving the fifth, sixth, seventh, twelfth, and sixteenth instructions asked for by defendant." We have examined the instructions given and refused, and ascertained that the district court did not err in giving all the instructions given, nor in refusing to give all the instructions refused, nor is the verdict contrary to all the instructions given by the court on its own motion. We cannot, therefore, further consider the assignments in the petition in error directed to the action of the court in giving and refusing to give certain instructions, nor to the assignment that the verdict is contrary to the instructions given by the court upon its own motion.

2. Counsel for plaintiff in error content themselves with a somewhat lengthy and desultory argument upon certain branches of insurance law, and then say: "The other errors referred to appear seriatim upon the record at pages 1, 5, 6, 7, 10, 11, 12, 14, 21, 27, 33, 34, 48, 49, 52, 53, 59, 66, 90, 102, 108, 109, 116, 119, 124, 135, and 137. A reference to the record we think a sufficient presentation of these various assignments, to which we ask the attention of the court without further argument." The rule of practice in this court is a very simple one. It requires of a litigant who brings a judgment of a district court here for review on error to specifically state in his petition in error of what action or omission of the district court he complains; and the brief filed should,--in addition to a concise statement of the facts of the case,--under appropriate headings, allege what particular thing the district court did, or refused to do, which the litigant claims was erroneous; and collated under such headings the litigant should state such arguments and cite such authorities as he deems sustain his contentions. Every judgment brought to this court for review comes surrounded with the presumption of correctness. It is not the duty of this court to search through a record for the purpose of ascertaining if it can find something which the court below did, or omitted to do, which is error; but the burden is upon the party complaining of the action of the nisi prius court to specifically point out the alleged act complained of and show that it was probably prejudicially erroneous. Only the actions or omissions of the district court which are so specifically assigned, both in the petition in error and in the brief filed here, can be considered. There remain, then, in this case to be considered only two questions, namely: Is the finding of the jury supported by sufficient evidence? Is the judgment rendered the one that should have been pronounced under the evidence in the case and the law applicable thereto?

3. Is the value fixed by the jury on the property destroyed by fire sustained by sufficient evidence? The policy in suit covered both real and personal property. The real property consisted of a frame dwelling and additions thereto insured for $ 500, a barn insured for $ 300, and a milk house insured for $ 50. The general verdict of the jury fixed the value of these buildings at the time of their destruction at $ 850. The undisputed evidence is that these buildings were totally destroyed. Now, section 43, chapter 43, Compiled Statutes, provides: "Whenever any policy of insurance shall be written to insure any real property in this state against loss by fire, * * * and the property insured shall be wholly destroyed without criminal fault on the part of the insured or his assigns, the amount of insurance written in such policy shall be taken conclusively to be the true value of the property insured, and the true amount of loss and measure of damages." Under the issues of the case the verdict of the jury includes a finding that the destruction of the property by fire was without criminal fault on the part of the insured or his assigns. In Home Fire Ins. Co. v. Bean, 42 Neb. 537, 60 N.W. 907, it was ruled: "Where real property is wholly destroyed by fire, any provision of a policy of insurance covering such property which in any manner attempts to limit the amount of the loss to less than the sum written in the policy is in conflict with the statutory rule, invalid, and will not be enforced." To the same effect see German Ins. Co. v. Penrod, 35 Neb. 273, 53 N.W. 74; German Ins. Co. v. Eddy, 36 Neb. 461, 54 N.W. 856; Insurance Co. of North America v. Bachler, 44 Neb. 549, 62 N.W. 911. The contract in evidence, upon which this suit is based, the statute quoted above, and the authorities just cited conclusively establish the correctness of the finding of the jury as to the value of the buildings destroyed.

4. By the policy in suit Simmons was insured against loss or damage by fire upon hay and grain, in barns or in stacks, to the amount of $ 300; household and kitchen furniture, both useful and ornamental, $ 500; butter and cheese apparatus and stock on hand in milk house, $ 350, or a total insurance of $ 1,150 on personal property. The jury by its general verdict found the value of the insured personal property destroyed to be $ 800. Simmons testified that at the time of the fire the butter and cheese apparatus and butter and cheese insured were in the milk house on his farm and were totally destroyed; that the value of the butter and cheese apparatus was $ 650; that there were on hand in the milk house at the time of the fire 300 pounds of butter, worth 25 cents per pound, or $ 75, which was also destroyed; that there were destroyed 45 tons of hay, worth $ 5 a ton, $ 225; 500 bushels of wheat in the stack, worth 55 cents per bushel, $ 275. His attention was next challenged to the articles of household and kitchen furniture destroyed by fire, and he was compelled, at great length, to enumerate the numerous articles and their value. Among the articles and their value which he testified were destroyed were the following: A cook stove, $ 25; cooking utensils, $ 30; two bedsteads, $ 14; two bedsprings, $ 5; two mattresses, $ 10; two feather beds, $ 20; bedding, such as quilts, etc. $ 20; forty yards of carpet, $ 10; one "catskin" overcoat, $ 28; two suits of clothes, $ 60; a miscellaneous lot of underwear, $ 15; boys' clothes and underclothing, $ 12; eight woolen dresses belonging to his wife, $ 80; a lady's coat, $ 24; his wife's underclothing, shoes, hats, shawls, $ 50; twenty or thirty books, $ 15; sewing machine, $ 28; three or four mirrors, $ 5; a number of pictures in frames, $ 2; set of silverware, $ 50; silver knives, forks, etc. $ 25; a hotel outfit of china, tableware, cups, saucers, etc. $ 150 to $ 200; potatoes on hand, $ 2.50; four hundred pounds salted pork, $ 40; twenty gallons fruits and jellies, $ 50; cupboard, $ 10; center table, $ 5; a bureau filled with underclothing, etc. $ 30; a commode, wash bowl, and pitcher, $ 6; fourteen chairs, $ 7; a clock, $ 7; a watch, $ 10,--making a total of $ 2,096. It will thus be seen that the finding of the jury that the value of the personal property destroyed was $ 800 does not lack evidence to support it. To be sure, the evidence was conflicting as to the value of some of this property, but the weight of evidence was for the jury. They saw the witnesses. They heard them testify. They have considered the testimony and have reached a conclusion; and since there is in the record evidence to support this conclusion, we are not at liberty to disturb it.

5. The jury, at the request of the insurance company, returned special findings as well as a general verdict, and it is said that the two are inconsistent. By their special findings the jury said that the value of the butter and cheese apparatus and stock at the time of the fire was $ 300; that the value of the household and kitchen furniture destroyed was $ 900; that the value of the hay and grain destroyed by the fire was $ 400, or a total of $ 1,600. But this is not an inconsistency of which the insurance company can complain. It was not prejudiced by it. Since the general verdict fixed the value of the personal property at $ 800 and a judgment was rendered against it for that amount, it has no cause of complaint because the special finding of the jury fixed the value of this same property at $ 1,600.

6. It is also said that the value placed upon the personal property by the special findings of the jury has no support in the evidence. This argument is untenable. We conclude, therefore, that the general verdict of the jury, on which the judgment complained of was rendered, is supported by sufficient evidence so far as the same relates to the value of the insured personal property destroyed.

7. The policy in suit provided that the insured within sixty days after the occurrence of a fire should furnish...