Home Fire Ins. Co. of Omaha v. Skoumal

• Decision Date: 18 May 1897
• Citation: 51 Neb. 655,71 N.W. 290
• Parties: HOME FIRE INS. CO. OF OMAHA v. SKOUMAL.
• Court: Nebraska Supreme Court

51 Neb. 655

71 N.W. 290

HOME FIRE INS. CO. OF OMAHA

v.SKOUMAL.

Supreme Court of Nebraska.

May 18, 1897.

Syllabus by the Court.

1. In a case submitted, under rule 2 (65 N. W. v.), on an agreed printed abstract, the court will not look beyond the abstract; and, in order to a reversal of the judgment below, error must affirmatively appear from the abstract itself. Closson v. Roman (Neb.) 69 N. W. 760, followed.

2. The settlement of a doubtful or disputed claim is generally a sufficient consideration for a compromise; but, in order to have such effect, it is essential that there be in fact a dispute or doubt of the rights of the parties. An arbitrary refusal to pay, based on the mere pretense of the debtor, made for the obvious purpose of exacting terms which are inequitable and oppressive, is not such a dispute as will of itself support a compromise resulting in a reduction of the amount of his indebtedness. Fitzgerald v. Construction Co., 62 N. W. 899, 44 Neb. 463, followed.

3. In an action on a policy of insurance written on real property, the court, in rendering judgment against the insurance company, may allow the plaintiff a reasonable sum as an attorney's fee, to be taxed as part of the costs. Comp. St. c. 43, § 45.

4. But, on a review of the judgment in this court, an additional sum will not be allowed as attorney's fees for conducting the proceedings here.

Error to district court, Cass county; Ramsey, Judge.

Action by James Skoumal against the Home Fire Insurance Company of Omaha. From a judgment for plaintiff, defendant brings error. Affirmed.Greene & Breckenridge, for plaintiff in error.

A. N. Sullivan and J. M. Leyda, for defendant in error.

IRVINE, C.

This case has been submitted on an agreed printed abstract under rule 2 (65 N. W. v.). It appears from the abstract that the case was begun in the county court, where judgment was rendered in favor of Skoumal, the plaintiff. It was taken by appeal to the district court, where judgment was again rendered for the plaintiff. The action was on a policy of fire insurance upon a dwelling house to the amount of $500 and upon personal property to the amount of $200. In defense of the action the insurance company pleaded that proofs of loss were furnished claiming a loss to the building of $337.10 and on personal property of $162.90,--in all, $500,--at which amount the loss was then and there adjusted; that the loss was payable 60 days after proofs of loss were furnished, and within that time a draft for $500 was tendered the plaintiff but by him refused. The tender was made in court of $500, and an offer was made to confess judgment for that amount. By the reply it was pleaded that the proofs of loss were prepared by the agent of the insurance company, who fraudulently inserted the amount specified, and who threatened the assured that he would receive nothing whatever unless he signed said proofs; that the assured had a very limited knowledge of the English language, and had had no experience with insurance companies, and relied on the acts and representations of the agent. The case was tried on a stipulation of facts, by which it appeared that a policy had been issued whereunder $500 was written on the house and $200 on the personalty; that the property was destroyed September 1, 1895, and that the house was totally destroyed; that proofs of loss were submitted as pleaded, and that the insurance company agreed to pay within 60 days $500, and the assured agreed to accept the same, but the assured supposed that it was to be paid forthwith; that the proofs of loss were prepared by the adjuster of the insurance company; that the damage to the dwelling house was $337.10 and to the personal property $162.90; that the assured objected to accepting less than the face value of his policy, and that the adjuster threatened him with litigation that would last four or five years unless he agreed to take said sum of $500; that the assured could not tell how the fire originated; that the adjuster told him that if he could tell the origin of the fire it might be different, and he might be entitled to the face value of his policy, and, relying on and believing said statements, the assured made the agreement hereinbefore stated.

The first question presented is as to the binding force of the adjustment or agreement pleaded and established by the stipulation. It will be observed that the amount for which the house was...