Home Fire Ins. Co. v. DeCker

• Decision Date: 09 June 1898
• Citation: 75 N.W. 841,55 Neb. 346
• Parties: HOME FIRE INS. CO. v. DECKER.
• Court: Nebraska Supreme Court

55 Neb. 346

75 N.W. 841

HOME FIRE INS. CO.

v.DECKER.

Supreme Court of Nebraska.

June 9, 1898.

Syllabus by the Court.

1. A party who has induced the court to permit him to open and close the trial, by representing that there was only one issue of fact for decision, cannot, after an adverse verdict, recede from his position, and obtain a new trial, on the ground that there were other questions of fact which should have been submitted to the jury.

2. A defendant may plead as many grounds of defense as he may have, provided they are not so repugnant that if one be true another must be false.

3. An answer, in an action on a contract of insurance, which alleges a failure to furnish proofs of loss, and that the plaintiff caused the premises to be burned, does not present inconsistent defenses.

4. An instruction admonishing the jury to consider the evidence of an accomplice “with great care and caution,” without giving them a definition of that phrase, is not erroneous.

5. The giving of an instruction which states a correct and pertinent proposition of law is not error, and a party who complains that such instruction lacks explicitness should himself formulate and tender a better one.

6. The failure to write the word “Given” on an instruction read to the jury is not sufficient ground for reversing a judgment, when such failure was not prejudicial to the losing party.

7. Where the verdict is the result of substantially conflicting testimony, a judgment based thereon will not be reversed on the ground that the evidence is insufficient.

Error to district court, Saline county; Hastings, Judge.

Action by Henry T. Decker against the Home Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.J. Fawcett and B. G. Burbank, for plaintiff in error.

Hastings & McGintie and Hastings & Sands, for defendant in error.

SULLIVAN, J.

On the 19th of April, 1892, the Home Fire Insurance Company of Omaha issued a policy of fire insurance to Henry T. Decker covering an opera house situated in the village of Dorchester, in Saline county. In August of the same year the building was completely destroyed by fire. The company declined to adjust the loss, and this action was thereupon commenced to recover the amount for which the policy was issued. The petition admitted that the proofs of loss had not been furnished as required by the contract, but alleged that the condition in relation thereto had been waived. The company filed its answer, in the first paragraph of which it denied generally the allegations of the petition. In the second paragraph it alleged that the plaintiff had not complied with the conditions of the policy of insurance respecting notice and proofs of loss; and in the third paragraph alleged that proofs of loss were not furnished within 60 days of the date of loss, as required by the conditions of the policy; also that certain papers designated “Proof of Loss” were furnished the company January 31, 1893, but less than 60 days previous to the commencement of the action on the policy. Upon these issues a trial was had, which resulted in a verdict and judgment for the plaintiff. Afterwards a new trial was granted on the ground of newly-discovered evidence. The company then filed an amended and substituted answer, setting up, in addition to the allegations in its former answer, a fourth paragraph, in which it alleged that the plaintiff, in violation of the conditions and agreement contained in the policy, caused the building to be burned by one S. M. Venard, for the purpose of defrauding the defendant.

Before entering on the trial of the cause plaintiff filed a motion to require the defendant to elect upon which of the defenses contained in its answer it would proceed to trial, asserting that the defenses pleaded were inconsistent; and also that the new trial was granted only for the purpose of obtaining a decision upon the matters alleged in the fourth paragraph of the answer. What order, if any, was made upon this motion, is not disclosed by the record; but it does appear that after the motion was filed the defendant, protesting and excepting, elected to abide by the defenses pleaded in the first and fourth paragraphs of the answer. The case was then tried to the jury, and the trial resulted in a verdict and judgment for the plaintiff. The defendant brings the case here for review on error, and insists that there were five good and sufficient reasons why the judgment of the district court should be reversed.

We proceed to examine these reasons in the order of their presentation. It is first argued that the court erred in forcing the defendant to an election of defenses, because the defenses pleaded were not inconsistent. We entirely agree with counsel that the several grounds of defense stated in the answer were not inconsistent. The proof of one would have no tendency whatever to disprove either of the others. A defendant may, under our system of pleading, allege as many grounds of defense as he may have, subject only to the condition, implied...