Summers v. Automobile Insurance Company of Hartford
| Decision Date | 18 April 1930 |
| Docket Number | 27225 |
| Citation | 230 N.W. 449,119 Neb. 625 |
| Parties | W. G. SUMMERS, APPELLEE, v. AUTOMOBILE INSURANCE COMPANY OF HARTFORD, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Garfield county: EDWIN P CLEMENTS, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
It is the settled law of this state that a cause is to be tried in the appellate court upon the same issues that were presented in the court from which the appeal was taken, with the exception of new matter after the first trial.
Where in an appeal from the judgment of the county court, the petition filed in the district court is assailed on the ground that it tenders other and different issues than those tendered in the court below, the question of fact, raised by such motion, is ordinarily determinable by a comparison of the petition filed in the district court with that upon which the cause was submitted to the county court.
The rule requiring cases on appeal to be tried on the same issues as those upon which they were tried in the court below does not require that the petition filed in the appellate court be in the precise language of that filed in the lower court; but, unless the ultimate facts relied upon for a recovery are substantially the same, and provable by evidence of the same character, it constitutes a change of the issues.
The pleading of a waiver in the district court for the first time, after an appeal from a judgment in a term case in the county court, constitutes a change of the issues, and a motion to strike the same should be sustained.
Appeal from District Court, Garfield County; E. P. Clements, Judge.
Action by W. G. Summers against the Automobile Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Montgomery, Hall, Young & Johnsen and Davis & Vogeltanz, for appellant.
B. A. Rose and E. M. White, contra.
HEARD before GOSS, C. J., DEAN, GOOD, EBERLY and DAY, JJ., and CARTER and CHASE, District Judges.
This is an action brought in the county court of Garfield county, Nebraska, to recover damages for loss of crops under the terms of a hail insurance policy. The answer admitted the contract of insurance, but alleged that it contained a provision that the company was not liable unless sworn proof of loss should be furnished the company within 60 days after the loss, setting forth specific information relative to the loss, and that said proof had not been furnished as required by the policy. No reply was filed. A trial was had, judgment awarded plaintiff, and an appeal taken to the district court.
In the district court plaintiff filed a petition almost identical with the petition filed in the county court. Defendant filed its answer raising the same issue as was raised in the county court. The reply was a general denial. Trial was had and a verdict and judgment awarded plaintiff. An appeal was taken to this court, where the judgment was reversed. Summers v. Automobile Ins. Co., 117 Neb. 318, 220 N.W. 277.
After the mandate of this court had been filed in the district court, plaintiff asked leave to file an amended petition alleging a waiver of the terms of the policy that had been previously pleaded as a defense. Written objections were filed to the allowance of the motion for leave to amend, on the ground that such an amendment, if allowed, would change the issues as presented on the trial of the case in the county court. The district court overruled the objections and permitted the amendment. Defendant then moved to strike the allegations alleged to constitute a waiver for the reasons previously set out in its objections to the amendment, which motion was also overruled. Defendant refused to plead further, a trial was had, and a judgment entered. From this judgment the defendant appeals.
The defendant (appellant here) contends that the district court erred in overruling defendant's objections to the waiver allegations in the amended petition, and in overruling defendant's motion to strike from the amended petition that portion alleging waiver by the defendant of the terms and conditions of the policy. The only question for us to decide is whether the amendment permitted by the district court constitutes a change in the issues as pleaded and presented in the county court. The plaintiff in the county court alleged that he had complied with the terms and conditions of the contract of insurance. The defendant alleged as a defense a failure to furnish proofs of loss as required by the policy. No reply was filed. Under these pleadings, the question of a waiver of the conditions of the policy was not an issue. The question of waiver raises an issue that must be pleaded, and cannot be shown under a general denial. Mordhorst v. Nebraska Telephone Co. 28 Neb. 610, 44 N.W. 469; Swett v. Antelope County Farmers Mutual Ins. Co., 91 Neb. 561, 136 N.W. 347; Summers v. Automobile Ins. Co., 117 Neb. 318, 220 N.W. 277. A waiver has been defined in an early holding of this court as "an intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it." Livesey v. Omaha Hotel Co., 5 Neb. 50. In accordance with the general rule as to the burden of proof, it devolves upon the party claiming a waiver to prove the facts on which he relies to establish it. It is, therefore, more than a mere issuable fact, it is a complete defense to a breach or forfeiture when established by competent evidence. Its very nature discloses that proof of a different character is required to support it. After a pleading of a waiver, the identity of the cause...
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