W. Horse, etc., Ins. Co. v. Sheidle

• Decision Date: 01 December 1885
• Citation: 25 N.W. 620,18 Neb. 495
• Parties: WESTERN HORSE, ETC., INS. CO. v. SHEIDLE.
• Court: Nebraska Supreme Court

18 Neb. 495

25 N.W. 620

WESTERN HORSE, ETC., INS. CO.

v.SHEIDLE.

Supreme Court of Nebraska.

Filed December 1, 1885.

Error from Lancaster county.J. R. Webster, W. E. Stewart, and Charles Ogden, for plaintiff.

A. K. Webster, for defendant.

REESE, J.

This cause was tried in the district court upon the following stipulation or agreed statement of facts: “(1) That on the fifth day of June, 1883, the defendant issued and delivered to plaintiff its policy of insurance No. 6858, the same being hereto attached, marked ‘A’ and made a part of this stipulation, insuring plaintiff against loss on one sorrel gelding in the sum of $125, and on one bay horse, $75. (2) That plaintiff gave his note for the premium, said note being hereto attached, marked ‘B’ and made a part of this stipulation. (3) That before the expiration of said policy of insurance, but after said premium note was due and unpaid, defendant placed said note in the hands of an attorney for collection; that said attorney gave plaintiff notice that said note was in his hands for collection, which notice is hereto attached, marked ‘C’ and made a part of this stipulation. (4) That on the fifteenth day of March, 1884, the plaintiff paid said note, and interest thereon, to said attorney, and said attorney remitted the same to the defendant within one week thereafter, less collection fees, and that plaintiff did not disclose to said attorney the fact that said sorrel horse had died on the day previous. (5) That said sorrel gelding died on the fourteenth day of March, in the afternoon of said day, about three o'clock P. M., and without fault or neglect on the part of the plaintiff. (6) That plaintiff gave the defendant notice of said loss as soon as he could find the agent of said company, and within six days after said loss. (7) That more than forty-five days before the commencment of this action, plaintiff gave defendant proof of said loss on blanks furnished by defendant, as required in said policy. (8) That said horse, said sorrel gelding, was of the value of $150; that defendant refused to pay the sum of $125, and has not paid the same, nor any part thereof. (9) Plaintiff has performed all other conditions of said policy by him to be kept and performed, except as negatived by this stipulation. (10) It is further stipulated that after defendant was served with summons, and before this cause was tried in justice court, defendant tendered the premium paid by plaintiff for insurance on said sorrel gelding, from the time said note was due to the expiration of said policy, to plaintiff, with interests and costs to that date thereon, and is now ready to pay the same, and brings the same into court and makes said tender good. The above are stipulated to be the facts of the cause so far as competent or material.” (Signed, etc.)

It is not necessary to set out copies of exhibits attached to the stipulation further than to say the note referred to as exhibit B is a negotiable promissory note, with condition that in case of loss the note should become due and be deducted therefrom, and that in case of the non-payment of the note at maturity, “the company shall have the right to cancel the policy, but, at their option, may revive it after full payment of principal, interest, and charges have been made.”

The court found in favor of defendant in error, whereupon a motion for a new trial was made upon the grounds that “(1) the pleadings of the cause will not support a judgment; (2) that upon the issues joined defendant is entitled to a judgment for costs, and that plaintiff's action be dismissed; (3) because judgment was rendered in favor of the plaintiff, whereas, upon the pleadings and facts, defendant was entitled to judgment upon the law and issues joined; (4) because the court admitted the stipulation of facts to be considered in evidence, to which defendant at the time objected, and excepted because the petition of plaintiff did not entitle him to adduce any evidence in the cause.” This motion being overruled and judgment entered, plaintiff in error seeks a review.

There are two principal and decisive questions in this case, to-wit: First, Whether or not the petition is sufficient to sustain the judgment; and, second, if so, whether the defendant in error could rightfully recover under the stipulated facts. The petition alleges in substance that defendant is an incorporated insurance company; that on the fifth of June, 1883, in consideration of the covenants performed by the plaintiff, it issued and...