Hodge v. Franklin Insurance Company of Philadelphia
| Citation | 126 N.W. 1098,111 Minn. 321 |
| Decision Date | 01 July 1910 |
| Docket Number | 16,598 - (93) |
| Parties | JOHN B. HODGE v. FRANKLIN INSURANCE COMPANY OF PHILADELPHIA |
| Court | Supreme Court of Minnesota (US) |
Action in the district court for Blue Earth county to recover $1,200 for loss of a building insured in defendant company. Defendant admitted the issue of the policy, but alleged that it was procured through fraud and collusion between plaintiff and its agent; that the premium had not been paid, and that plaintiff made fraudulent proofs of loss. The case was tried before Pfau, J., and a jury which rendered a verdict in favor of plaintiff for $985.92. Defendant's motion for judgment notwithstanding the verdict or for a new trial was denied and from that part of the order denying the motion for judgment, defendant appealed. Affirmed.
Alternative motion -- appeal from part of order.
When a blended motion is made for a new trial and for judgment notwithstanding the verdict, that part of the order denying the motion for judgment is not appealable.
Value of property insured -- fraud -- evidence.
The evidence is sufficient to sustain the jury in finding that respondent had not fraudulently represented the value of the property insured and the amount of the loss sustained.
Charge to jury.
There were no errors in the charge submitting these issues to the jury.
C. L. Benedict and D. J. Severance, for respondent.
Respondent was the owner of a building and certain household goods and personal property located therein, on which he took out three insurance policies, two on the building and one on the personal property. A fire occurred, and an action was brought against each of the companies to recover on each of the policies. The three actions were tried together, resulting in a verdict for the plaintiff in each case. The several appellants moved for judgment notwithstanding the verdict and for a new trial, which was denied. In the case against the Mercantile Fire & Marine Insurance Company, involving the personal property, appeal was taken from the whole order; but in the other two cases appeal was taken from that part of the order which denied the motion for judgment.
It is the settled rule of this court that, where the blended motion is made for judgment notwithstanding the verdict and for a new trial, an appeal from that portion of the order denying the motion for judgment does not have the effect of presenting any question for review. St. Anthony Falls Bank v. Graham, 67 Minn. 318, 69 N.W. 1077; Oelschlegel v. Chicago G.W. Ry. Co., 71 Minn. 50, 73 N.W. 631; Savings Bank of St. Paul v. St. Paul Plow Co., 76 Minn. 7, 78 N.W. 873; Kalz v. Winona & St. Peter Ry. Co., 76 Minn. 351, 79 N.W. 310; Sanderson v. Northern Pacific Ry. Co., 88 Minn. 162, 92 N.W. 542, 60 L.R.A. 403, 97 Am. St. 509.
The personal property consisted of household goods, clothing, and a small stock of merchandise contained in the building destroyed by fire. The complaint states that the value of the personal property so destroyed was $1,675, and that it was insured for the amount of $1,100. The answer presented the defense that respondent had fraudulently misrepresented the value of the property at the time the insurance was applied for and taken out, and also that he had falsely represented the amount of the loss. This issue of fraud and misrepresentation was submitted to the jury, and the principal assignments of error are directed to the sufficiency of the charge.
While discussing this subject, the court called the attention of the jury to the section of the policy which declared that the policy should be void if the insured should make any attempt to defraud the company,...
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