Home Fire Insurance Company of Omaha v. Johnson

• Decision Date: 05 December 1894
• Docket Number: 5777
• Citation: 61 N.W. 84,43 Neb. 71
• Parties: HOME FIRE INSURANCE COMPANY OF OMAHA v. ELIJAH L. JOHNSON, REVIVED IN THE NAME OF JACOB GALLEY, ADMINISTRATOR
• Court: Nebraska Supreme Court

61 N.W. 84

43 Neb. 71

HOME FIRE INSURANCE COMPANY OF OMAHA v. ELIJAH L. JOHNSON, REVIVED IN THE NAME OF JACOB GALLEY, ADMINISTRATOR

No. 5777

Supreme Court of Nebraska

December 5, 1894

ERROR from the district court of Nuckolls county. Tried below before MORRIS, J.

AFFIRMED.

A. S Churchill, for plaintiff in error.

W. A Bergstresser and Cole & Brown, contra.

OPINION

RYAN, C.

This action was prosecuted in the Nuckolls county district court for the amount of loss sustained by defendant in error, by the burning of his building insured by plaintiff in error. There was a verdict and judgment for the amount of insurance named in the policy, with interest.

The first error assigned is that the court improperly denied plaintiff in error a continuance upon the showing made of the absence of defendant in error and of C. J. Slater. By these witnesses it was claimed in this showing that the insurance company would be able to show, in support of the averments of its answer, that its agent, Mr. Sutherland, did not, before the loss, place this risk with plaintiff in error, but that after the fire he received payment of the premium and wrote up the policy sued on. As to the absence of Elijah L. Johnson, the defendant in error, it was shown that previous to the time the application for a continuance was made he had been a great while sick and unable to leave his house for a long time,--indeed such was his condition when the insurance was effected. The verdict was returned and judgment rendered on November 7, 1891, and we find in the record a stipulation establishing the fact that Mr. Johnson died February 6, 1892. It is therefore specially worthy of note that there was no statement in connection with the affidavits for a continuance which would tend to establish any expectation that if this cause had been continued, Mr. Johnson's evidence would ever have been procured. In relation also to Slater, there was no showing that his testimony would have been procured if a continuance had been granted. In addition to this fact there was no proper proof of the inability of Slater to attend the term of court at which this cause was tried. It is true there were affidavits of the attorney for plaintiff in error as to the sickness of Slater, but these were evidently predicated upon a mere letter of the secretary of the insurance company, in which it was stated that Slater was in Colorado, or had been when he was last...