Colgrove v. National Union Fire Insurance

196 N.W. 553, 50 N.D. 485, 1923 N.D. LEXIS 124

• Court: North Dakota Supreme Court
• Decided: December 27, 1923
• Status: Published

Opinion

Nubssle, J.

This is an action to recover on account of certain policies of insurance against crop failure. The plaintiff in his complaint sets out three different canses of action: the first, on account of a policy of insurance issued to him; the second, on account of a policy of insurance issued to one Peter Jordan and assigned to the plaintiff; and the third, on account of a policy of insurance issued to one Carl Pergcs and assigned to the plaintiff.

Tlio pleadings in the various causes of action and the issues as raised thereby are in all essential respects identical with those in the companion case of Rokusek v. National Union F. Ins. Co. heretofore decided, ante, 123, 195 N. W. 300, excepting insofar as they necessarily differ by reason of the policies in question having been issued to different persons covering different crops and for different amounts.

At the close of the plaintiff’s case, and again at the close of the whole case, the defendant moved for a directed verdict. No ruling was made upon such motion. Plaintiff had a verdict. Judgment was entered thereon. No motion for a new trial was made, nor was there a motion for judgment notwithstanding the verdict. The case- is here on appeal from the judgment.

The principles of law announced on the Rokuselc Case, supra, are applicable in this case and require a reversal of the judgment. The evidence in the case, however, distinguishes it from the Rokuselc Case in this: in that case we held as a matter of law that no fraud was established as regards the settlement. In this case, hmvever, we are not prepared to say that there was no evidence from which such fraud could be found. Hence, defendant is not entitled to judgment notwithstanding the verdict, but a new' trial will be ordered.

Birdzjcll, Christianson, and Johnson, JJ., and Cooley, Dist. J., concur. Mr. Chief Justice Bronson, being disqualified, did not participate. Honorable Chas. M. Cooley of the First Judicial District, sitting in his stead.