Wood v. Security Mutual Life Insurance Company
| Citation | 198 N.W. 573,112 Neb. 66 |
| Decision Date | 30 April 1924 |
| Docket Number | 22685 |
| Parties | EDWARD A. WOOD, APPELLANT, v. SECURITY MUTUAL LIFE INSURANCE COMPANY, APPELLEE |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Lancaster county: ELLIOTT J CLEMENTS, JUDGE. Affirmed.
AFFIRMED.
Wilmer B. Comstock, for appellant.
Field Ricketts & Ricketts, contra.
Heard before MORRISSEY, C. J., LETTON, DEAN and DAY, JJ., and REDICK, District Judge.
On and before June 1, 1915, plaintiff conducted a barber shop in a room in the south end of the basement of defendant's building, then known as the Burr block, at the southeast corner of O and Twelfth streets in Lincoln, under a written lease which was to terminate about 2 1/2 years thereafter. About June 1st defendant began to remodel and reconstruct its building, and plaintiff, finding it necessary to procure another location, was permitted by defendant to move into and occupy a room free of charge in the north end of its building, fronting on Twelfth street, to be used as a barber shop, while the reconstruction was in progress.
Plaintiff contends that, while the rebuilding was going on, the room was thereby rendered almost useless as a barber shop for a period of about 1 1/2 years, by being filled with smoke, dust, dirt, lime, mortar and other debris. Alleging damage in the sum of $ 10,000 this action was begun. From an adverse verdict, and judgment thereon, plaintiff appealed.
In his brief plaintiff says that he specially relies for reversal upon alleged misconduct of counsel and the jury, and error in the instruction of the court in respect of the written agreement, or release, which is in evidence. The agreement, which is dated July 23, 1915, so far as material here, is in the following language:
"
Plaintiff, however, contends that he did not sign the contract, or release, which is in evidence, and avers that his name, which is inscribed thereon, is a forgery, and that this is "the vital point in the lawsuit." On this controverted point much evidence was introduced by the parties, but the jury evidently rejected plaintiff's version and accepted that of defendant. So that, in view of the fact that there is sufficient competent evidence to support a finding that the agreement was signed by plaintiff, we conclude that this question is foreclosed as against him.
In respect of the foregoing release, plaintiff contends that the alleged erroneous construction, of which he complains, is that the jury were instructed that, if it found from a preponderance of the evidence that plaintiff executed the instrument, it then became its duty to return a verdict for defendant. His argument is that the only damage which could have been reasonably contemplated thereunder was damage to visible, tangible property "which plaintiff had in his shop" and which was capable of physical custody. He insists that the contract had no reference to plaintiff's trade or business and did not therefore work a release of liability for damage thereto.
We do not think plaintiff's argument is tenable. He cites decisions to support his contention which do not seem to be in point and which, in view of the weight of authority, are not applicable to the facts before us.
It is to be noted that, by the language of the instrument in question, plaintiff agreed to hold defendant harmless "from all liability for damage to the person or property" of plaintiff. The inquiry then should be directed to what is meant, under the law, by this expression as used by the parties in their agreement.
"Property," in a broad sense, is defined as any valuable right or interest considered primarily as a source or element of wealth, and includes in modern legal systems practically all valuable rights. Webster's New International Dictionary. In New Jersey it was held that "a calling, business or profession, chosen and followed, is property." State v. Chapman, 69 N.J.L. 464, 55 A. 94. It has also been held that the owner of a vessel has a property right, not only in the vessel itself, but in its use and the business in which it is employed. Sailors' Union v. Hammond Lumber Co., 156 F. 450. At page 454, in the case last cited, the court said: In Pennsylvania the court declared that the labor and skill of the workman, be it of high or low degree, the plant of the manufacturer, the equipment of the farmer, investments of commerce, are all, in equal sense, property. Purvis v. Local No. 500, 214 Pa. 348, 63 A. 585, 12 L. R. A. N. S. 642, citing State v. Stewart, 59 Vt. 273, 59 Am. Rep. 710, 9 A. 559. In the Purvis case the court held, in direct terms, that a person's business is property within the meaning of the law. In Illinois it has been held: "The term 'property' includes every interest any one may have in any and everything that is the subject of ownership by man, together with the right to freely possess, use, enjoy and dispose of the same." Bailey v. The People, 190 Ill. 28, 60 N.E. 98. In the Bailey case it was also held that the right to entertain lodgers in a lodging house is a property right.
The word "damage" has been defined as "loss injury, or deterioration, caused by the...
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Wood v. Sec. Mut. Life Ins. Co.
...112 Neb. 66198 N.W. 573WOODv.SECURITY MUT. LIFE INS. CO.No. 22685.Supreme Court of Nebraska.April 30, [198 N.W. 573]Syllabus by the Court. A tenant occupied a barber shop in a room in his landlord's building free of charge. During his occupancy the building was reconstructed. In the lease h......
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