Omaha Fire Insurance Co. v. Crighton
| Decision Date | 08 January 1897 |
| Docket Number | 7011 |
| Citation | 69 N.W. 766,50 Neb. 314 |
| Parties | OMAHA FIRE INSURANCE COMPANY v. ELIAS CRIGHTON |
| Court | Nebraska Supreme Court |
ERROR from the district court of Hall county. Tried below before THOMPSON, J. Affirmed.
AFFIRMED.
W. H Thompson and Jacob Fawcett, for plaintiff in error.
W. A Prince, contra.
This is an action on a fire insurance policy, brought in the district court of Hall county by Elias Crighton against the Omaha Fire Insurance Company, hereinafter called the insurance company. Crighton had a verdict and judgment and the insurance company prosecutes here a petition in error.
1. Of the errors assigned by the insurance company we notice the following: On the trial of the case, at the request of counsel for Crighton, the court permitted the jurors to make memoranda of the various articles testified to have been destroyed by the fire. This is the first assignment argued which we notice. We cannot say that this action of the court was prejudicial to the insurance company. A large number of articles were testified about. The number of these articles and the values placed upon them it would be almost impossible for the average man to remember without a memorandum, and we think that it was a matter resting in the discretion of the trial court to permit or not the jurors in this case to make the memoranda complained of. We are aware that in Cheek v. State, 35 Ind. 492, it was held that a juryman must register the evidence on the tablets of his memory, and not otherwise; but that was a murder trial, and during its progress two of the jurors made notes of the evidence. To this the defendant on trial objected at the time, and the jurors were instructed by the court to desist from making notes. This they refused to do, and the supreme court said that their conduct was sufficient to entitle Cheek to a new trial; but the case was not reversed because of this conduct of the jurors. But in Indianapolis & St. L. R. Co. v. Miller, 71 Ill. 463, it was said that a juror of his own motion might make memoranda of evidence or of points in the argument, but the court said that a juror should not do this at the instance of counsel. We do not lay down any rule upon the subject, but content ourselves with holding that in this case the district court did not abuse its discretion in permitting jurors to make memoranda of articles testified about during the progress of the trial.
2. Crighton made a written application to the insurance company for the policy issued. This application, so far as material here, was as follows: "Application of Elias Crighton * * * for insurance against loss or damage by fire or lightning * * * according to the specifications below, for the term of five years from the 23d of May, 1893: On one-story shingle roof frame building occupied by insured as dwelling, nothing; household furniture while in said dwelling, $ 300; farm machinery while on farm, $ 480; horses and mules, wherever they be, $ 600; hay and grain on cultivated land, $ 25; hay press and horse-power on premises, $ 175; * * * situate on the southwest quarter of section nine (9), township ten (10), range eleven (11)." As a defense to the action the insurance company pleaded that by this application Crighton represented to it that he was the owner of the one-story frame shingle roof building situate on the land described, and that the household goods insured were then in said building; that such representations were false, made by Crighton for the purpose of deceiving the insurance company, and were believed in and relied upon by it. The reply of Crighton met this defense by denying that he represented that he was the owner of the building situate on the property described; and denied that he represented to the company that the household goods were then in said building, but alleged that he was illiterate and unable to read and write; that the agent of the insurance company wrote the application and that he, Crighton, told him at the time that the household goods were then in some tents, but that in a few days he intended to move them into the house on the piece of land mentioned. On this issue the court instructed the jury to the effect that since the oral statements of the application for insurance were reduced to writing by the agent of the insurer, parol evidence was admissible to show that the application did not correctly recite the oral representations made. The giving of this instruction is the second assignment of error argued here. The court did not err in giving this instruction. In State Ins. Co. v. Jordan, 29 Neb. 514, 45 N.W. 792, it was held that where the insured was unable to read and write, and the application was made out by the agent of the...
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