Poppitz v. German Ins. Co. of Freeport, Ill.
| Citation | 88 N.W. 438,85 Minn. 118 |
| Parties | POPPITZ v. GERMAN INS. CO. OF FREEPORT, ILL. |
| Decision Date | 27 December 1901 |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Carver county; Francis Cadwell, Judge.
Action by Herman Poppitz against the German Insurance Company of Freeport, Ill. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.
1. Northwestern Mut. Life Ins. Co. v. Rochester German Ins. Co. of Rochester, N. Y. (recently decided by this court) 88 N. W. 265, followed and applied with respect to the question as to what constitutes a total loss within the meaning of our standard policy law.
2. Evidence examined and held not so clearly in favor of plaintiff's contention that he had suffered a total loss of his property as to justify the court in directing a verdict in his favor.
3. A jury trial may be waived in the manner pointed out in Gen. St. 1894, § 5385, or by such unequivocal acts and conduct before the court as clearly show a willingness and intention to do so.
4. It does not necessarily follow, from the fact that at the close of the trial of an action both parties request the court for a directed verdict, that either thereby waived the right to have the cause submitted to the jury, if his request is denied; especially if his request for a directed verdict is accompanied by requests for other instructions. Countryman & Morrison, for appellant.
Chas. P. Barker, for respondent.
Action to recover upon a fire insurance policy. The trial court directed a verdict for plaintiff, and defendant appealed from an order denying a new trial. The only assignment of error necessary to be considered is whether the court below erred in directing a verdict for plaintiff. The contested question on the trial in the court below was whether plaintiff had suffered a total loss of the property insured. Plaintiff insisted that the loss was total, while defendant maintained that it was not.
The question as to what constitutes a total loss under our standard policy law was directly presented in the case of Northwestern Mut. Life Ins. Co. v. Rochester German Ins. Co. of Rochester, N. Y., 88 N. W. 265, the opinion in which, written by Mr. Justice Lewis, was recently filed. We there held that a loss is not total, within the meaning of the standard policy law, unless the building insured be so far destroyed by the fire that no substantial part or portion thereof above the foundation remained in place capable of being utilized in restoring the building to the condition in which it was before the fire. The question was very fully and carefully considered, and the rule there laid down is believed to be sound, and must be followed and applied in this case. Applying it, we have only to determine whether the evidence is so conclusive, or so clearly in favor of the contention that the building in question was so far destroyed by the fire as to render what remained unfit to be used in restoring the same to its original condition, as to justify the court in directing a verdict. We have...
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