Nudd v. Home Insurance Co.

• Decision Date: 24 June 1878
• Parties: WILLIAM H. NUDD and others <I>vs.</I> HOME INSURANCE AND BANKING COMPANY OF TEXAS.
• Court: Minnesota Supreme Court

25 Minn. 100

WILLIAM H. NUDD and othersvs.

HOME INSURANCE AND BANKING COMPANY OF TEXAS.

Supreme Court of Minnesota.

June 24, 1878.

Appeal by plaintiffs from an order of the district court for Hennepin county, Vanderburgh, J., presiding, granting a new trial.

P. M. Babcock and Charles Allen, for appellants.

Samuel R. Thayer, for respondent.

CORNELL, J.

This is an appeal from an order granting a new trial, chiefly on the ground of surprise. The application was made and heard upon affidavits, and upon the reporter's minutes of the trial, which the parties by stipulation agreed might be treated as a settled case, for the purposes of the motion. No objection appears to have been taken in the court below to the sufficiency of the notice of motion, nor to any of the affidavits or papers which were used at the hearing. If any valid objection of this kind existed, it should have been seasonably presented in that court. None such having been there raised, none can be permitted to be here, for the first time, interposed.

The action was brought upon a policy of insurance, to recover the amount of a loss by fire happening on the first day of August, 1876. The policy contained stipulations requiring "the insured, in case of loss by fire, forthwith to give notice thereof to the company; and also, as soon thereafter as possible, to render a particular account of such loss, signed and sworn to by them;" and it appears that it was issued and accepted in reference and subject to these, among other conditions. The material question put in issue by the pleadings for litigation related to the performance of these conditions of the policy by the plaintiffs, full compliance therewith being averred generally in the complaint and denied in the answer; and this was the only issue that was thus raised or tendered in respect to these conditions. On the trial, Charles Allen, the attorney of plaintiffs, was sworn, and gave testimony as a witness in their behalf, against the objection of the defendant, but with the permission of the court. He testified to having sent, as such their attorney, by mail, to the home office of the defendant company, in Galveston, Texas, on January 26, 1876, five months and twenty-six days after the fire, a verified account and statement of their loss; that prior to mailing these proofs, he had been in correspondence with the company, and had sent, and received in reply, one or two letters, which he had lost and was unable to find. In stating the contents of the first of these letters, which he received, as he says, about the middle of January, 1876, he testified that the company therein expressed its regret that it had not been sooner notified of the loss at the home office, and requested said Allen to make out and send on proofs of the loss, and that it would have the matter inquired into, and "honorably adjusted, fairly adjusted," or something of that kind, and that the proofs were forwarded by him, in pursuance of such request.

On the application for a new trial, it was shown to the satisfaction of the court, and, in our opinion, upon abundant testimony, that no letter of the purport as thus...