Hargrave v. Home Fire Insurance Company

• Decision Date: 03 January 1895
• Docket Number: 6110
• Citation: 61 N.W. 611,43 Neb. 271
• Parties: EMMA HARGRAVE ET AL. v. HOME FIRE INSURANCE COMPANY
• Court: Nebraska Supreme Court

61 N.W. 611

43 Neb. 271

EMMA HARGRAVE ET AL. v. HOME FIRE INSURANCE COMPANY

No. 6110

Supreme Court of Nebraska

January 3, 1895

ERROR from the district court of Douglas county. Tried below before DAVIS, J.

REVERSED.

John P Breen, for plaintiffs in error.

Jacob Fawcett, contra, cited in support of the direction of the verdict: Hyatt v. Brooks, 17 Neb. 33; Lent v Burlington & M. R. R. Co., 11 Neb. 201; Burlington & M. R. R. Co. v. Wendt, 12 Neb. 76; Post v. School District, 19 Neb. 135; Burns v. City of Fairmont, 28 Neb. 866; Hughes v. Ins. Co. of North America, 40 Neb. 626.

OPINION

RYAN, C.

In compliance with a peremptory instruction there was a verdict for the defendant, on which judgment was duly rendered by the district court of Douglas county. In effect, there is but one assignment of error presented, and that is as to the instruction to find for the defendant. It is not necessary to determine whether or not plaintiff was probably entitled to a judgment in view of all the evidence introduced, for the determination of contested questions of fact is within the province of the jury, and it is error to direct what verdict shall be found. (Hall v. Vanier, 6 Neb. 85; Johnson v. Missouri P. R. Co., 18 Neb. 690, 26 N.W 347; Grant v. Cropsey, 8 Neb. 205; Houck v. Gue, 30 Neb. 113, 46 N.W. 280.) Where from the testimony before the jury different minds might draw different conclusions, it is error to direct a verdict. (Suiter v. Park Nat. Bank of Chicago, 35 Neb. 372, 53 N.W. 205.) Where the evidence, which would sustain or defeat a recovery, is conflicting, the question is for the jury. (Union P. R. Co. v. Cobb, 41 Neb. 120, 59 N.W. 355.)

The policy admitted to have been issued to the plaintiff was of date February 3, 1890, and was for the period of one year from February 1, 1890. The articles insured were household furniture, beds, bedding, wearing apparel, etc. The policy was not issued upon a written application, but upon the request of George W. Hopper. It was sent to Lizzie Kirk about two months after its date. She testified that at the time the policy was given her, the person by whom it was delivered notified her that afterwards she might make payment of the premium at the door. Subsequently Mr. Johnson, who was collector for the defendant, asked payment of the premium which Miss Kirk at the time was not able to make. Mr. Hopper was, by Mr. Johnson, requested to ask Miss Kirk to pay the amount of the premium, and did so, but was able to obtain only a promise that she would pay it as soon as the assured could secure money for that purpose. On the 28th day of July 1890, a fire broke out in a block very close to the building wherein was kept the insured household goods. Miss Kirk paid the premium to Mr. Hopper, and in about half an hour after such payment the aforesaid fire reached the building occupied by Miss Kirk. Some of the goods insured were totally destroyed, others were damaged. The money paid to Mr. Hopper was at once paid to the defendant. It was received without any knowledge on the part of the officers of the company that the property described in the policy was either being destroyed or imminently threatened by fire. When Mr. Hopper received the premium he said to Miss Kirk that it was pretty late to make payment, but he did not think her building was in any danger. It is evident, however, that her own realization of the danger to be apprehended was such that she hurriedly paid the premium, which otherwise she might not have done, and requested Mr. Hopper at once to turn it over to the defendant. On the day following the fire Miss Kirk called at the...