Kemmer v. Sunshine Mutual Ins. Co.

• Court: North Dakota Supreme Court
• Writing for the Court: GRIMSON; MORRIS
• Citation: Kemmer v. Sunshine Mutual Ins. Co., 79 N.D. 518, 57 N.W.2d 856 (N.D. 1953)
• Decision Date: 02 April 1953
• Docket Number: No. 7351,7351
• Parties: KEMMER v. SUNSHINE MUT. INS. CO.

Page 856

57 N.W.2d 856

79 N.D. 518

KEMMER v. SUNSHINE MUT. INS. CO.

No. 7351.

Supreme Court of North Dakota.

April 2, 1953.

Syllabus by the Court

1. In all cases tried to a jury a review in the supreme court is limited to the errors assigned or apparent on the face of the judgment roll.

2. In an action to recover damages under a policy of insurance against loss by hail or windstorm, testimony as to the value of the damaged property at a time 52 days after the hailstorm is inadmissible when the evidence shows material changes in the condition of such property but does not show that all such changes resulted from the hailstorm.

3. Whether evidence offered is too remote or insufficient to show material changes in damaged property by a hailstorm is for the trial court to decide in the exercise of sound discretion and its decision thereon will not be disturbed by the appellate court unless it appears that such decision amounts to an abuse of discretion.

4. The evidence in the instant case is examined and held that the trial court properly refused to admit the testimony on behalf of the plaintiff of value of the property insured 52 days after the damage by the hailstorm.

5. The best evidence rule does not apply to a writing, the contents of which are not in issue but which has been referred to only to prove a collateral fact.

Wm. L. Paulson, Valley City, and Philip L. Scherer, Winthrop, Minn., for appellant.

Coffey, Mackenzie & Jungroth, Jamestown, for respondent.

GRIMSON, Judge.

Plaintiff was the owner of a farm located at the edge of Litchville in North Dakota. She lived in a house on that farm of which only the first story had been built. That was a basement story, four feet in the ground and four feet above the ground. The roof was flat, covered with two layers of heavy roofing on boards plus two or three applications of heavy tar. The house was 32 X 40 ft., containing three bedrooms, a sitting room, kitchen and dining room combined, and a wash room. She had it completely furnished. On July 9, 1948, she took out an insurance policy in the defendant insurance company to protect household goods, personal effects and other personal property located in that house, from loss by fire, lightning, windstorm and hail to the amount of $2,000. She paid the premiums on that policy. In late October or in November, 1949, she left her home and went to Corpus Christi, Texas. She was there interested in a curio business. She did not return until August 15, 1950. She left all her household goods, furnishings and personal effects in her Litchville home and in good condition. She left a key to the house with a neighbor 'to go and look over the premises and see how things are once in a while.' About June 25, 1950, a severe hailstorm struck the premises, followed by rain which lasted from 30 to 40 minutes. Some 45 to 80 holes were punched in the roofing by the hailstones. Water leaked through the roof and everything in the house became soaked with water. On June 28th a neighbor notified the plaintiff by mail of the damage to her property. She then notified the insurance company and made a claim for damages. She disposed of her business interest at Corpus Christi as soon as she could and returned to Litchville on Aug. 15, 1950. The defendant insurance company offered her $67 in payment of her damages. The policy was in force at the time of the hailstorm.

This action is brought upon the insurance policy for the damages resulting to her household and personal effects from the hailstorm of June 25, 1950, which she alleges in the complaint amounted to $2,000. The defendant answers by a general denial, admitting the policy and alleging as an affirmative defense that the provisions of the policy had not been complied with, that plaintiff neglected to use reasonable means to preserve and save the property after the losses complained of and completely abandoned the property. Other allegations in the answer are not sustained by any evidence, and were apparently abandoned.

The case was tried to the jury who found for the plaintiff in the sum of $306.25. The plaintiff made a motion for a new trial which was denied by the court. This appeal is from the order denying that motion.

Both in her notice of appeal and in a separate specification the plaintiff demands a trial de novo in the supreme court. The law does not entitle her to that. Section 28-2732, NDRC 1943, authorizes a trial do novo on appeal to the supreme court only in cases tried to the court alone.

This court has repeatedly held that a case tried to the jury is not triable de novo upon appeal to the supreme court. In all cases tried to the jury a review in the supreme court is limited to the errors assigned or apparent on the face of the judgment roll. See Ripplinger v. Otten, 77 N.D. 531, 44 N.W.2d 60; First National Bank of Crary v. Bremseth, 60 N.D. 401, 234 N.W. 758; Baird v. First National Bank, 60 N.D. 286, 234 N.W. 71, and cases cited.

With her notice of motion for a new trial plaintiff filed specifications of error. All those specifications are classified under errors in law occurring at the trial. Some questions relating to the cause of the condition of the household goods on August 15, 1950, were objected to on the ground that no sufficient foundation had been laid and the objection was sustained. We find no reversible error in the rulings of the court on those questions. Two of the questions on which error is assigned were answered later. Most of those errors are assigned in connection with the ruling of the court that evidence of the value of the household goods on August 15, 1950, some 52 days after the hailstorm was inadmissible.

The evidence showed that the plaintiff had left the premises before Dec. 1, 1949. The premises had remained vacant thereafter. The plaintiff was allowed to testify that the property then was in good condition, and to its value as of that time. The defendant, however, showed that in the spring of 1950 some water had seeped into that basement. A Mr. Larson with whom she had left the key found water in the basement in early May 1950, more than a foot deep. He had pumped it out. He again found water in the basement about the 4th of June, probably five or six inches deep. He again pumped it dry. On both occasions he saw the furniture and a trunk standing in the water. As to what damage was caused thereby is not shown but the defendant is not liable under its policy for that damage, if any. Right after the hailstorm one John Smith examined the property. He then found water in the basement 8 or 8 1/2 inches deep. He found the holes in the roofing. He saw furniture in the kitchen and a table with wet covering. He then notified plaintiff by ordinary mail and she again by ordinary mail asked him to get the key and show the insurance adjuster through the house. Three weeks after the storm the adjuster came and Smith showed him through the house. At that time the water was all gone. Smith observed the veneer of the piano was loosened up and the veneer of a violin case was coming apart. A daybed and a chest of drawers were wet. The chest was made of three ply quarter inch board, glued together. A pair of shoes was full of water. A week or ten days after the adjuster was there Mr. Smith, at the request of plaintiff, strung clothes lines in the middle of the living room and hung up to dry some of the clothes that were in the cabinets, trunk and cedar chest. In a couple of days he would fold them, lay them on a table and hang up some more clothes. He was in the process of thus drying out the clothes when plaintiff came back on August 15th.

Plaintiff was allowed to testify as to the condition and value of her household goods before she left for Corpus Christi in the fall of 1949. That was proper. The property was of a kind that would remain in the same condition under ordinary circumstances. State on Inf. of McKittrick v. Graves, 346 Mo. 990, 144 S.W.2d 91. While she was not allowed to testify as to its value on her return on August 15, 1950, she was allowed to testify as to its condition at that time and she described some of it as ruined. Sh...