Hargraves v. Home Fire Ins. Co.
| Decision Date | 03 January 1895 |
| Citation | 61 N.W. 611,43 Neb. 271 |
| Parties | HARGRAVES ET AL. v. HOME FIRE INS. CO. |
| Court | Nebraska Supreme Court |
When there was such a conflict of the evidence that a verdict might reasonably have been found in favor of the plaintiff, it was error for the district court to instruct the jury peremptorily to find for the defendant.
Error to district court, Douglas county; Davis, Judge.
Action by Emma Hargraves and another against the Home Fire Insurance Company on a fire insurance policy. Judgment was rendered for defendant, and plaintiffs bring error. Reversed.John P. Breen, for plaintiffs in error.
J. Fawcett, for defendant in error.
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. Railway Co., 18 Neb. 690, 26 N. W. 347; Grant v. Gropsey, 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. Bank, 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. Railway Co. v. Cobb (Neb.) 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 were 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,...
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