Feldmeyer v. Engelhart
| Decision Date | 31 December 1928 |
| Docket Number | No. 6796.,6796. |
| Citation | 54 S.D. 81,222 N.W. 598 |
| Parties | FELDMEYER v. ENGELHART. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Day County; Robert D. Gardner, Judge.
Action by A. C. Feldmeyer against D. H. Engelhart. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.C. C. Busch, of Waubay, and Babcock & Babcock, of Sisseton, for appellant.
Lewis W. Bicknell, of Webster, for respondent.
In 1927, respondent owned the contents of a hotel at Pickerel Lake. Appellant was engaged in the hardware business and in writing insurance. About July 1st, appellant talked to respondent at the hotel about fire insurance on its contents. Respondent asked appellant to procure him $1,500 of such insurance, but, on examination of the rate book there had by appellant, it was discovered that no rate was given therein for insurance on property at Pickerel Lake. However, appellant stated to respondent that, estimating from the rate given therein on property at Enemy Swim Lake, a policy for $1,500 would cost about $34. Appellant left with the understanding that he would attempt to get such a policy. On July 12th, respondent were to appellant's place of business, and, appellant being out, respondent paid $30 to appellant's clerk to apply on the insurance policy, and received a receipt therefor so stating. A few days later appellant again saw respondent. Respondent testified that appellant said: To which respondent replied, “It is all right with me if I get the policy;” whereupon appellant said, “You will get the policy.” According to appellant, instead of the conversation above described, appellant tendered back to respondent his check for $30, and said: “I haven't got any rate on the insurance yet, and I cant' write it up.” Respondent said, “When you get a rate, write it up.” Appellant replied, “All right.” He then made a receipt on his regular receipt form, and said, “I will call you up and let you know as soon as I get the rate;” then, at respondent's request, appellant credited the $30 on appellant's store account, which then amounted to over $60. Appellant testified that he wrote twice in July to the general inspection bureau for a rate, but received neither a rate nor a reply; that he did not write or telephone to respondent as to the result of his efforts, nor did he discuss the matter further, until after a fire in October destroyed the hotel and its contents.
Immediately after the fire, according to the testimony of appellant as an adverse witness, appellant told respondent that he had been unable to get a rate, that no policy had been issued, and that he had had no opportunity to inform respondent. According to respondent, appellant said:
Claiming the property destroyed to have been of the value of $2,300, respondent sued appellant for damages for breach of the contract to procure insurance, and asked judgment for $1,500. In his answer, appellant pleaded a general denial and no other defense. On trial, the jury returned a verdict for respondent on all the issues, and for damages in the sum of $1,037.90. From the judgment thereon and from the order denying appellant's motion for a new trial, this appeal is taken. The assignments of error are argued under three main heads: Those relating to rulings on evidence; those relating to the insufficiency of the evidence; and those relating to instructions. We find no errors in the rulings on evidence which are prejudicial or which merit discussion.
[1] Appellant also assigns as error the giving of the following instruction:
“The court instructs the jury, that where an owner of property requests an agent to procure insurance thereon, and the agent agrees to do so, and is free to do so, the effect of such contract is to obligate the agent to use reasonable diligence to...
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