Farmers' & Merchants' Ins. Co. v. Dabney

• Decision Date: 19 June 1901
• Citation: 62 Neb. 213,86 N.W. 1070
• Parties: FARMERS' & MERCHANTS' INS. CO. v. DABNEY.
• Court: Nebraska Supreme Court

62 Neb. 213

86 N.W. 1070

FARMERS' & MERCHANTS' INS. CO.

v.DABNEY.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. Exceptions to the exclusion of testimony are unavailing, unless there be a tender made of the proof which it was sought to elicit. Railway Co. v. Vincent, 78 N. W. 457, 58 Neb. 172, followed.

2. As a general rule, it is not good pleading to state a new cause of action, or part thereof, in the reply; but where no objection is made on that ground in the district court, and the issues presented are submitted on their merits, the objection that the cause of action was first stated in the reply will be held to have been waived. Gregory v. Kaar, 54 N. W. 859, 36 Neb. 533, followed.

3. Where the proofs before a jury are conflicting, the verdict will not be disturbed, unless it is clearly wrong.

4. Evidence examined, and held to present a proper question for the jury.

5. An alleged error, not brought to the attention of the trial court, will not be considered by this court on a review of the case by petition in error. Ecklund v. Willis, 60 N. W. 1026, 42 Neb. 737, followed.

6. There is nothing in the constitution of the United States or of this state which forbids classification of subjects for the purpose of legislation. The power to classify is subject only to the limitation that the classification must not be arbitrary.

7. The provision of section 3 of the valued policy law (section 45, c. 43, Comp. St. 1899), permitting the taxation as costs of a reasonable attorney's fee upon rendering judgment against an insurance company on a contract insuring real estate, is grounded on considerations of public policy, and is constitutional.

Error to district court, Holt county; Kinkaid, Judge.

Action by Frank Dabney against the Farmers' & Merchants' Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.Wellington H. England and Halleck F. Rose, for plaintiff in error.

M. F. Harrington, for defendant in error.

DAY, C.

For brevity the parties will be referred to as “plaintiff” and “defendant” as they appear in the court below. This action was brought by plaintiff, on appeal from the county court to the district court of Holt county, against the defendant; the basis of the action being an insurance policy issued by the defendant to the plaintiff, dated April 26, 1892, and expiring April 26, 1897. The consideration for the policy was plaintiff's note for $36, dated April 26, 1892, and due December 1, 1892. The specific property covered by the policy and the amount of insurance thereon were as follows: $800 upon the dwelling house; $300 on barn No. 1; $200 on barn No. 2; and $500 on cattle. The dwelling house was wholly destroyed by fire on March 14, 1896. The trial resulted in a verdict for plaintiff for $837, upon which, with accrued interest, a judgment was subsequently rendered. To review this judgment defendant brings error to this court.

The answer admitted the issuance and delivery of the policy, but alleged that the note given for the premium contained a stipulation that the company should not be liable for any loss or damage which might occur to the property while the note or any part thereof was past due and unpaid; that at the time of the alleged fire the note was past due and unpaid, and still remains unpaid; that the policy by its terms became suspended and inoperative, and no liability attached to the defendant thereunder. The policy contained a stipulation as follows: “If a note be given for the premium on this policy, or any part thereof, it is mutually agreed and understood by and between the assured and the company that, in case said note or any part thereof be not paid at maturity, this policy shall be suspended, inoperative, and of no force and effect so long as such note or any part thereof remains overdue and unpaid; and in case of any loss of said property, either partial or total, while said note or any part thereof remains overdue and unpaid, this company shall not be liable for said loss, nor shall the payment of said note, or the receiving or retention of the proceeds, or any part thereof, by this company, render it liable for any loss occurring while said note, or any part thereof, remains overdue and unpaid; nor shall such payment or retention be said to be a waiver of any condition in the policy or obligation. The payment of the premium, however, revives this policy, and reinstates the same for the remainder of this term only.” The reply alleged that, previous to the fire, it had been mutually agreed that the contract of insurance was severed; that the dwelling house was insured separately from the other property; that the defendant received from plaintiff full payment of the premium on the dwelling house prior to the loss. By order of the court, the petition filed in the county court was to stand as the petition in the district court, to which defendant filed answer and plaintiff filed reply. It will not be necessary to consider all of the numerous errors alleged in the petition in error. Such as are not argued in the brief will be deemed to have been waived.

One of the assignments relates to the overruling of the motion to strike the reply from the files. Immediately after the jury was sworn, the defendant called the county judge as a witness, presumably to show by oral testimony that the issue presented by the pleadings was different from what it was in the county court. Upon objection to the examination of the witness on the ground that its purpose was not disclosed, defendant made an oral motion to strike the reply for the reason that the pleadings presented a new issue from the one tried in the county court; but before the motion was passed on, or any testimony taken in support thereof and apparently immediately following the motion to strike the reply, the defendant suggested a diminution of the record. A colloquy followed between the court and counsel for both sides, at the conclusion of which the court made a ruling: “The order is granted, and I will look up the question of jeopardy.” This is the only ruling disclosed by the record on the motion to strike the reply, and to this ruling no exception was taken by the defendant. The order of the court is indefinite as to its application to the motions then before the court, but it referred to the diminution of the record; otherwise, there would have been no occasion to have proceeded with the trial upon the theory the case was tried. It would have been an easy matter, by comparison of the pleadings in the county court with those in the district court, to determine whether a new issue had been raised. The record brought to this court shows the proceedings had in the county court, and discloses that plaintiff was granted leave to file a reply, and that a reply was filed; but it is not set out in the transcript. If it had become lost, its contents could have been established by competent evidence. If the defendant desired to insist on its motion to strike, it should have interrogated the witness further, and, if denied that right, made its offer to prove the fact. Failing to do this, there is nothing presented in this assignment of error for our review.

Assignment of error No. 4 is: “In permitting the trial of issues not raised in the trial in the county court, where the case originated.” Nowhere in the record is it shown what the issues were in the county court; nor is it shown in what respect the issues tried in the district court were different from those that were tried by the county court. There is, therefore, nothing before us from which it can be determined whether the issues were the same or not. Defendant started to show the difference, if any, at the entrance of the trial, but did not persevere long enough to prove any difference. At the conclusion of the evidence, defendant made an offer “to show that the issues in the case and tried in this court are different and other issues from the issues in the court below.” But the offer did not inform the court in what respect the issues differed, nor what the issues were in the court below, nor any facts from which such conclusion could be drawn. The offer was a mere conclusion. The facts should have been stated so that the court could say from them whether a new issue was presented. From the record made, this court is unable to say that the offered testimony, if received, would have shown any difference. “Exceptions to the exclusion of testimony are unavailing, unless there be tender made of the proof of which it was sought to elicit.” Railway Co. v. Vincent, 58 Neb. 172, 78 N. W. 457;Hambleton v. Fort, 58 Neb. 282, 78 N. W. 498.

Defendant insists that on the pleadings and evidence it was entitled to a verdict as a matter of law. This contention rests in part, upon the peculiar state of the pleadings. Plaintiff had stated one part of his cause of action in the petition and the remainder of it in the reply. The answer admitted a part of the petition, including some facts that were at variance with the reply. To illustrate: The petition charged that the consideration for the issuance of the policy was plaintiff's note for $36, and the property described as being covered by the policy was the dwelling house only. The answer admitted this, but alleged the note had not been paid, and pleaded conditions of the note and policy which would suspend its operation. The reply alleged that the contract had subsequently been severed and that the amount of premium on the dwelling house for the full period had been paid, and that the balance due upon the note was for the premium upon the other items of property covered by the policy. With this confusion as a basis, defendant contends that the facts alleged in the petition, which were expressly admitted in the answer, became conclusively established for the purpose...