Cruikshank v. St. Paul Fire & Marine Insurance Company

• Decision Date: 12 January 1899
• Docket Number: 11,481 - (260)
• Citation: 77 N.W. 958,75 Minn. 266
• Parties: F. D. CRUIKSHANK v. ST. PAUL FIRE & MARINE INSURANCE COMPANY
• Court: Minnesota Supreme Court

77 N.W. 958

75 Minn. 266

F. D. CRUIKSHANK v. ST. PAUL FIRE & MARINE INSURANCE COMPANY

Nos. 11,481 - (260)

Supreme Court of Minnesota

January 12, 1899

Action in the district court for Wilkin county to recover $1,500 upon an insurance policy. The cause was tried before C. L Brown, J., and a jury, which rendered a verdict for $766.25 in favor of plaintiff. From an order denying a motion to enter judgment for defendant notwithstanding the verdict for plaintiff, defendant appealed. Affirmed.

SYLLABUS

Judgment notwithstanding Verdict -- Laws 1895, c. 320 -- Practice -- New Trial.

In extending, by Laws 1895, c. 320, the common-law remedy of judgment notwithstanding the verdict to cases where, upon the evidence, a party is entitled to judgment, it must be assumed that the legislature intended such cases to be governed by the same rule as obtained at common law where the motion was made on the record alone, and that the motion should only be granted when it clearly appears from the evidence that the cause of action or defense sought to be established could not, in point of substance, constitute a legal cause of action or a legal defense; and that it should be denied where it appears probable that the party has a good cause of action, or a good defense, and that the defects in the evidence are of such a character that they probably could be supplied upon another trial. Where the motion after verdict is exclusively for judgment notwithstanding the verdict, and not in the alternative for that remedy or for a new trial, if the party is not entitled to judgment as requested, he is not entitled, at least as a matter of right, to a new trial.

Palmer & Beek and Ezra G. Valentine, for appellant.

It is settled that where a policy requires notice of loss to be given to the insurer within a specified time, such notice is a condition precedent to the right of action on the policy. Ermentrout v. Girard Fire & Marine Ins. Co., 63 Minn. 305; Bowlin v. Hekla Fire Ins. Co., 36 Minn 433; Shapiro v. Western Home Ins. Co., 51 Minn. 239; Shapiro v. St. Paul Fire & M. Ins. Co., 61 Minn. 135.

Lyman B. Everdell and Mathews & Wood, for respondent.

In the absence of statutory authority the appellate court will not order judgment non obstante veredicto. Stewart v. Everts, 76 Wis. 35. The rendition of such a judgment by the trial court rests in its sound discretion. 11 Enc. Pl. & Pr. 920. It is never granted, except when it is clear that the party asking it is justly entitled to it; and, when asked for by the defendant, that the plaintiff has no legal cause of action. Id. 919; Williams v. Anderson, 9 Minn. 39 (50); Lough v. Thornton, 17 Minn. 230 (253).

OPINION

MITCHELL, J.

This was an action to recover upon a "hail insurance policy," one provision of which was that,

"In case of loss by hail to the crops insured, the assured shall mail a written notice to the company at its office in the city of St. Paul, Minn., within forty-eight hours after the time of such loss, stating the day and hour of the storm, also the probable damage to each part of the crops insured."

So far as material for the purposes of this appeal, the defense was that the insured had not given notice of loss in accordance with this provision of the policy.

The policy contained a warranty that the insured was the owner of all the land upon which the crops covered by the policy were growing, but a breach of this warranty, if any, was a matter of defense, and no such defense was pleaded.

When the evidence closed the defendant moved the court to direct a verdict in its favor, but the court denied the motion and submitted the case to the jury, which found a verdict in favor of the plaintiff. Thereupon the defendant made a motion, not in the alternative for judgment notwithstanding the verdict, or, in case that should be...