Loncar v. National Union Fire Ins. Co. of Pittsburgh, Pa.
| Decision Date | 08 February 1929 |
| Docket Number | 6390. |
| Citation | 274 P. 844,84 Mont. 141 |
| Parties | LONCAR v. NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, PA. |
| Court | Montana Supreme Court |
Rehearing Denied March 6, 1929.
Appeal from District Court, Cascade County; Wm. E. Carroll, Judge.
Action by Marko Loncar against the National Union Fire Insurance Company of Pittsburgh, Pa. Judgment was entered for plaintiff, and, from an order granting new trial conditionally, plaintiff appeals, and defendant cross-assigns error. Order reversed, and verdict and judgment permitted to stand.
Smith & Eickemeyer and W. F. O'Leary, all of Great Falls, for appellant.
Freeman Thelen & Freeman, of Great Falls, for respondent.
This action was brought to recover damages under a fire insurance policy. The policy was issued by the defendant and covered a dwelling house, furniture, and a small barn belonging to plaintiff, all of which were destroyed by fire. The policy was issued for $3,000, which is the amount demanded in the complaint. The answer denied liability in any amount in excess of $500, which was alleged by the answer to be the cash value of the property. It also set up three affirmative defenses. The reply denies all of the affirmative allegations of the answer.
The trial was had before Hon. W. H. Meigs, sitting with a jury. A verdict for plaintiff was rendered in the sum of $2,500, and judgment entered on the verdict. A motion for new trial was heard before Hon. Wm. E. Carroll, Judge Meigs having been disqualified. The motion was granted upon the following condition: "Unless the plaintiff, within five (5) days after notice of the order remits and agrees to accept in satisfaction of said judgment, as and for the cash value of the property insured at the date of its destroyal by fire the sum of $900; in which event and upon the satisfaction of said judgment this cause shall not be held for further or other proceedings." This appeal was taken by plaintiff from that order.
At the time of the arguments in this court, defendant presented a motion to strike from the transcript all of what appears to be the stenographer's report of the evidence introduced at the trial, on the ground that it was not settled in a bill of exceptions as provided in section 9390, Revised Codes 1921, and does not contain a certificate of the court as required by section 9402, Id.
Counsel for plaintiff assert that defendant has waived the right to object to the record on appeal. With this we agree. Section 9747 provides: "All objections to the record and brief of appellant shall be deemed waived unless a motion to dismiss is made because thereof, except such as will prevent a fair hearing, consideration, and decision of the appeal on its merits; and as to any such objection the court may, in its discretion, permit a compliance with the provision of the law or rule of court violated, within such time and upon such terms as may be just." As hereinbefore stated, the motion under consideration was not filed until the day of the argument. It failed to meet the requirements of Rule 14 subd. 3, of this court.
Counsel for both parties in their briefs treated the record as correctly setting forth the evidence. No contention is now made that the testimony is not accurately set forth in the record.
The facts in this case are not substantially different from those appearing in the case of Sevanin v. Chicago, etc., Ry. Co., 62 Mont. 546, 205 P. 825, wherein this court held that there had been a waiver of objections to the transcript, and said: "To take any other view than that of considering the transcript would be chasing a shadow at the expense of letting the substance escape." The motion to strike is accordingly denied.
The several assignments of error in plaintiff's brief raise the question of the correctness of the court's conditional order granting a new trial. It is contended by plaintiff that the evidence does not justify the action of the court in reducing the amount of the verdict from $2,500 to $900. In considering this question the same presumptions do not attend the act of the judge who granted the motion as if granted by the judge who tried the case. Judge Carroll, not having seen nor heard the witnesses, was governed in his consideration of this case by the same rules which govern this court on appeal. Marcellus v. Wright, 65 Mont. 580, 212 P. 299. If there is substantial evidence in the record supporting the verdict of the jury, its verdict should not be reduced and the judgment of the judge, who neither saw nor heard the witnesses, substituted for that of the jury, more especially so where, as here, there was no evidence upon which to base the order made by Judge Carroll conditionally granting the new trial, as hereinafter pointed out.
The record discloses that according to the terms of the policy the house was insured for $1,500, the furniture for $1,200, and the barn for $300. It limited the liability of the defendant to the actual cash value of the property at the time of loss or damage, and it also provided that the liability of the defendant should not exceed the cost of repairing or replacing the property with material of like kind and quality. It also gave the defendant the option, within 30 days after the receipt of proof of loss, to repair, rebuild, or replace the property lost or damaged with other of like kind or quality. This option was not exercised by the defendant. The policy was issued on January 6, 1927, for a term of three years. All of the property was completely destroyed by fire on March 5, 1927. Defendant admitted that notice of loss was given to it as provided in the policy.
On the question of the value of the property the record discloses the following evidence: The plaintiff testified that he paid $1,800 for the house, lot, and barn and that he thought the buildings alone were worth $2,000. The buildings were built in 1917. The deed to the property recited a consideration of $1,800. He testified also that at the request of the adjusters of the defendant he went to a representative of the Monarch Lumber Company to find out what it would cost to replace the house and was advised that it would cost twenty-three or twenty-four hundred dollars, more or less. He testified that he paid $1,188 for the furniture. He bought the buildings in October, 1926, and stated that they, as well as the furniture, were in as good condition at the time of the fire as when he bought them. An agent of the defendant solicited the insurance and was out to plaintiff's place for that purpose, was in the house, and had an opportunity to see the furniture.
Joe Karaffa, a contracting carpenter, stated that he was familiar with the buildings in question and that he had made an estimate of the cost of constructing the buildings, and said it would cost between $2,700 and $3,000.
The evidence offered by the defendant on the issue of the value of the property was as follows: John Nemec testified that plaintiff bought the house, lot, and barn in question from him and paid $1,600 in cash for the property and gave him a credit of $200 for groceries. Mary Nemec testified to the same effect. Harold Mady, the county assessor, testified that the lot on which the buildings in question were situated was assessed for the year 1927 to John Nemec at the value of $54 and the house for $400. Paul Asich testified that he sold the furniture and fixtures to plaintiff for $1,188. Evidence of the price paid for the property, less depreciation, if any, between the time of the purchase and the loss, was properly admitted to prove the value of the property at the time of the loss. Holter Lumber Co. v. Fireman's Fund Ins. Co., 18 Mont. 282, 45 P. 207.
There is no foundation in the evidence to warrant the action of Judge Carroll in reducing the verdict of the jury from $2,500 to $900, or in granting a new trial on the ground of excessive damages.
Defendant in its brief, relying upon section 9751, Revised Codes 1921, assigns 21 cross-assignments of error, and contends that the motion for new trial should have been granted on other grounds than those assigned by Judge Carroll. Plaintiff contends that, since the order in question is not a general but is a special one, the only question reviewable on this appeal is that of the sufficiency of the evidence to support the verdict on the issue of damages. This court has decided this question adversely to the contention of plaintiff, in the case of Ebaugh v. Burns, 65 Mont. 15, 210 P. 892. Under that decision, if the motion for new trial should have been sustained on any of the grounds specified in the motion, this court will not disturb the order granting it.
The first cross-assignment predicates error upon refusal of the court to permit defendant's counsel to ask plaintiff on cross-examination how Bob Klasner came to be present at the time of the execution of the deed to the property in question. It appears that Bob Klasner was a witness to the execution of the deed conveying the house, lot, and barn to the plaintiff. Defendant contends that this question was proper in view of the answer, which denies plaintiff's ownership of the property.
In our opinion, the objection to the question was properly sustained. How Klasner happened to be present at the time of the execution of the deed had no bearing upon the question of the ownership of the property. The deed was properly acknowledged before Howard Bennett, a notary public. It was not necessary to its validity that it be signed by a witness. Furthermore, the defendant's witnesses, John and Mary Nemec, the grantors named in the deed, testified on behalf of the defendant that they actually sold the property to plaintiff and executed the deed in question. Also, Klasner was called as a witness for the defendant and...
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