Feil v. Northwest German Farmers Mutual Insurance

149 N.W. 358, 28 N.D. 355, 1914 N.D. LEXIS 134

• Court: North Dakota Supreme Court
• Decided: October 8, 1914
• Status: Published

Opinion

Fisk, J.

Action to recover on a fire insurance policy. Such policy contains the usual stipulation that “this policy shall be void . . . if the insured, now has or shall hereafter obtain any other insurance on said property without the assent of the company,” etc. There was other insurance on the property, and the defense is that the policy is void because such other insurance was not assented to by the defendant company. This issue was, by consent, tried to the court, a jury having been waived. Such trial resulted in findings and conclusions favorable to plaintiff, and judgment in accordance therewith was given and entered in his favor for the sum demanded in the complaint. From this judgment defendant has appealed to. this court, urging as the only grounds for a reversal the following, so-called specifications of error:

1. The evidence is insufficient to sustain the decision.

2. The decision is not sustained by the weight of the evidence.

It needs no argument to demonstrate that such specifications are wholly inadequate and unavailing. The controlling statute — § 4, chap. 131, Laws 1913 — expressly provides that “a specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient.” This is a reasonable requirement of the new practice act, and a substantial compliance therewith will be exacted by this court. The failure to thus comply with such plain statutory rule leads to an affirmance, there being no contention that any errors appear on the face of the judgment roll. Notwithstanding the conclusion thus reached, we have examined the merits sufficiently to satisfy us that the same result would necessarily follow, even if the practice pursued by appellant had complied strictly with the statute. Briefly stated, our reasons are the following:

The case is not here for trial de novo, it being properly a jury case. The findings are therefore entitled to the weight of a special verdict of a jury, and they will not be disturbed where they have substantial support in the testimony. That they have such support is clear. Indeed, counsel tacitly, if not expressly, admit this to be true by the following statement in their printed argument: “The appellant contends that the evidence is insufficient on all points to sustain the decision of the court, the plaintiff's case relying entirely upon their own testimony, while they are contradicted Toy disinterested witnesses as to the facts.”

Concededly, there was a square conflict in the testimony upon the crucial issue of fact, and the trial court, whose function it was to determine the credibility of the witnesses and the weight to be given their testimony, found in favor of the plaintiff, and such finding ought not to be disturbed.

Judgment affirmed.