Omaha Fire Insurance Company v. Dierks & White
| Decision Date | 15 January 1895 |
| Docket Number | 5853 |
| Citation | 61 N.W. 740,43 Neb. 473 |
| Parties | OMAHA FIRE INSURANCE COMPANY v. DIERKS & WHITE |
| Court | Nebraska Supreme Court |
ERROR from the district court of Holt county. Tried below before KINKAID, J.
AFFIRMED.
Jacob Fawcett, for plaintiff in error
Where the policy requires written notice of the loss to be furnished, and also requires the furnishing of proofs of loss, both are conditions precedent to the plaintiff's right to recover.
M. F. Harrington, contra, cited: State Ins. Co. v. Schreck, 27 Neb. 527; McReady v. Rogers, 1 Neb. 124; Strader v. White, 2 Neb. 362; Brooks v. Dutcher, 22 Neb. 644; Harden v. Atchison & N. R. Co., 4 Neb. 521; Baker v. Bailey, 16 Barb. [N. Y.], 54; Fish v. Redington, 31 Cal. 194; Robbins v. Lincoln, 12 Wis. 8; Dillon v. Russell, 5 Neb. 484; Williams v. Evans, 6 Neb. 216; Payne v. Briggs, 8 Neb. 75; Hansen v. Lehman, 18 Neb. 564; Lynch v. State, 30 Neb. 740; Chicago, K. & N. R. Co. v. Wiebe, 25 Neb. 542; Cobb v. Ins. Co. of North America, 11 Kan. 97; Phenix Ins. Co. v. Bachelder, 32 Neb. 490; California Ins. Co. v. Gracey, 24 P. [Col.], 577; Taylor v. Merchants Fire Ins. Co., 9 HOW [U. S.], 390.
The opinion contains a statement of the case.
Dierks & White brought this suit in the district court of Holt county, against the Omaha Fire Insurance Company, to recover the value of certain live stock which they alleged they owned, which had been insured against loss or damage by fire by the insurance company, and which live stock had been destroyed by fire. Dierks & White had a verdict and judgment and the insurance company brings the case here for review.
1. The first error assigned is "irregularity in the proceedings of the court and abuse of discretion, by which the defendant was prevented from having a fair trial." This assignment is too indefinite for consideration and indeed is not referred to in the briefs of counsel for the insurance company.
2. The second error is assigned in the following language: "Irregularity in the proceedings of the jury.' This assignment is also too indefinite for review.
3. The third assignment is "accident and surprise which ordinary prudence could not have guarded against in the evidence of the witness Dierks in testifying to a verbal release of a part of the property from the mortgage." This is one of the causes for a new trial permitted by the third subdivision of section 314 of the Code of Civil Procedure; but section 317 of the same Code provides that such a ground for a new trial must be sustained by affidavits showing the truth of the ground alleged. This means that the affidavits showing the truth of the facts alleged for a new trial on the grounds of accident or surprise must be filed in and brought to the attention of the court below. The record contains no affidavit filed by the insurance company in the district court in support of a new trial on the grounds of accident or surprise. Affidavits which tend to show that the insurance company was taken by surprise in the trial of the case below have been filed in this court, but we cannot consider them. This as an appellate court is authorized by law to review the action of the district courts, but in doing so this court can pass upon no question which was not presented to and passed upon by the district court; nor will this court, for the purpose of determining whether the district court came to a correct conclusion, examine any evidence which was not presented to that court.
4. The fourth assignment of error is "excessive damages, appearing to have been given under the influence of passion or prejudice;" and the fifth assignment is "error in the assessment of the amount of recovery, it being in excess of the amount the plaintiffs were entitled to under the evidence." Neither of these assignments are referred to in the briefs of counsel for the insurance company and are therefore considered waived.
5. The eighth assignment is "errors of law occurring at the trial and excepted to at the time by the defendant." This assignment is too indefinite and uncertain for review.
6. The ninth assignment is "the court erred in each of the instructions given upon its own motion, and in each of the instructions given at the request of the plaintiffs, to which exception was taken at the time." The charge of the district court contains twelve paragraphs or instructions, and the exception noted to these instructions by counsel for the insurance company is in the following language: "Comes now the defendant and excepts to the instructions numbered from one to seven inclusive given to the jury by the court on the trial of said cause." In McReady v. Rogers, 1 Neb. 124, the exception taken to the charge of the court was in the following language: "To all [of which charge,] and each and every part thereof," the defendant, by his counsel, then and there excepted. CROUNSE, J., speaking for the court of this exception, said: The rule as announced in that case has, so far as we know, never been consciously deviated from by this court, but has been time and again reaffirmed. Here the assignment of error is that the court erred in giving each--every one--of the instructions given by it on its own motion, but no attempt was made to except to more than seven of them, and since the assignment is in effect that the court erred in giving all the instructions which it did give, and all the instructions were not excepted to, the assignment of error cannot be considered for that reason.
7. The tenth assignment is "the court erred in giving each of the instructions given at the request of the plaintiff below." If the district court gave any instructions at the request of Dierks & White they do not appear in the record. The only instructions in the record are those given by the court upon its own motion.
8. The sixth, seventh, and eleventh assignments of error are that the verdict is not sustained by the evidence, that the verdict is contrary to law, and that the court erred in overruling the motion of the insurance company for a new trial. The verdict of the jury is not contrary to the law, and the court did not err in overruling the motion for a new trial, if the verdict is sustained by sufficient evidence.
Dierks & White pleaded in their petition that about the 5th of February, 1891, as provided by the policy, they gave notice of the loss in writing to the insurance company, and gave notice of said loss to one Wallace, the agent of the defendant nearest to where the loss occurred. This allegation of the petition was expressly denied by the insurance company. The insurance company, as an affirmative defense to the action, pleaded that the insurance policy provided that if the insured property should be sold or incumbered without the consent of the insurance company indorsed on the policy, that the policy should thereupon become void; and that before the fire Dierks & White, without the knowledge or consent of the insurance company, executed a chattel mortgage upon the property; and that "said mortgage was a valid and subsisting lien upon said property so insured and upon the property claimed to have been destroyed by said fire at the time of the fire on February 2, 1891." The reply of Dierks & White to this defense of the insurance company was as follows: "Denies the plaintiff mortgaged the property destroyed by fire, * * * and say that the policy sued upon covered personal property only and no particular property was insured by the policy sued on, * * * and denies that there was a valid or subsisting lien upon said property or any portion thereof at the time the same was destroyed by fire."
The issues of facts made by the pleadings were: (a) The value of the property destroyed; (b) whether Dierks & White gave notice of the fire to the insurance company; (c) whether Dierks & White mortgaged the insured property without the consent of the insurance company prior to the fire; (d) whether the mortgage was a lien upon the insured property at the time it was destroyed by fire.
The evidence sustains the value placed on the property by the jury; and the evidence in the record shows beyond dispute that the insured property or a part of it which was destroyed by fire was previous to its destruction incumbered by a chattel mortgage; and the evidence in the record is sufficient to support the finding of the jury that such insured property at the time of its destruction by fire had been released from the lien created by the mortgage.
In State Ins. Co. v. Schreck, 27 Neb. 527, 43 N.W. 340, it was held that where personal property was incumbered by a chattel mortgage after such property had been insured, and contrary to the provisions of the insurance policy, the insured could nevertheless recover for the value of the property destroyed if at the time of the property's destruction it was free from the incumbrance. We adhere to and reaffirm the doctrine of that case.
The eminent counsel for the insurance company does not controvert, as we understand him, the correctness of the...
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