Stockwell v. German Mutual Insurance Ass'n of LeMars

158 N.W. 450, 37 S.D. 348, 1916 S.D. LEXIS 66

• Court: South Dakota Supreme Court
• Decided: June 27, 1916
• Docket: File No. 3910
• Status: Published

Opinion

GATES,, J.

Plaintiffs crops were insured by defendant against loss by hail. Plaintiff’s evidence tended to show such loss. Defendant’s 'evidence tended to show loss :by wind and lain. Plaintiff .promptly notified defendant of the loss, and shortly thereafter defendant’s adjuster made an investigation and reported, “Nfo loss allowed.” The secretary of the defendant testified, “We denied from the first that there ever was a loss.”' Trial by jury was had, which returned a verdict' for plaintiff in ■the sum of $909.65. Prom the judgment and an order denying a new tidal, defendant appeals.

[1] Appellant urges that it was error to allow evidence as to the crop yield of respondent’s neighbors for the purpose of establishing the amount of respondent’s loss. There was evidence tending to show that the crop conditions of the neighbors were practically the same as those of respondent 'before the hailstorm. It is true this evidence was not as definite as it might have been. It was', however, sufficient to- constitute a prima facie showing, and1, being uneontroverted, we think it sufficient to justify the rulings complained of. The trial court carefully protected appellant’s rights in this respect in its charge to the jury.

[2] It is next urged that appellant was prejudiced by the exclusion from evidence of a lease of the land made to other persons than respondent for -the year in question. It appears by the uncontradicted testimony that the lessees under the written lease had moved from the land, and that -the manager of the owner, who had the authority, leased the land to respondent by verbal lease. The exclusion of the written lease was clearly not prejudicial.

[3] Appellant next complains of the ruling of the court in refusing appellant’s motion to dismiss its counterclaim. This counterclaim was for the first installment of a note for five installments of $88 each, given by respondent for the premium upon his hail policy, or such portion thereof as might be assessed, the first installment of which was for the year in question. In his reply respondent admitted the execution of the note, but denied that anything was due thereon. During the trial respondent admitted that the assessment for that j'ear had been properly made and that the note had not been paid. We fail to discover how appellant was prejudiced by a ruling which allowed it to deduct the amount of the first installment of the note from the verdict.

[4] Objection is next made to the sustaining of an objection - to the following* question asked of the thresher of the grain:

“Q. During the time you were eating at Mrs. Stockwell’s and when Charles ■ Stockwell was present, was there any conversation between yourself, Mrs. Stockwell, or diaries Stockwell about the way that grain was stacked?”

The thresher had previously given testimony tending* to show that a part of the grain had rotted on account of bad stacking. The purpose of the above question was evidently tO‘ impeach the the testimony of plaintiff wherein he testified that the stacking was done in a good and husband-like manner; but in the examination of plaintiff his attention was not called to this conversation, and no foundation was laid for the impeaching testimony. The court therefore did not err in 'sustaining respondent’s objection to the question.

[5] Objection was further made that respondent failed to comply with the by-law which required him to render a true account of the amount of crops grown upon the land, certified to by two disinterested witnesses. The denial of any liability on the part of the defendant excused such compliance, as has been frequently held' in this and other jurisdiction's.

[6, 7] Finally, it is urged that there -was no evidence to show the measure of damages, except the market value of the crop less the cost of threshing, husking, and hauling to market. -The precise point is thus stated in appellant’s brief:

“There was no evidence to show how much it cost in labor or material to care for the grain or bring what was left of it to maturity, or how much it cost to cultivate or keep the corn and otherwise prepare it for market.”

Courts will take judicial notice of the fact that, in so far as small grain is concerned, there is no cost to the farmer in bringing it to maturity after it is eight or ten inches high, as this grain 'was at the time ,1-- ^ail. In regard to the corn, the evidence showed that it -was from six to eight inches high at the time of the hail, and that there were three or four stalks to the hill. After the hail, there were one or two 'stalks to the hill. It is not contended that there is any less cost of cultivating a patch of corn with only one or two stalks to the hill than a patch with three or four stalks to the hill. The trial court instructed the jury on this point as follows:

“If you find for the plaintiff, you may assess his damages at the market value of the crap destroyed, if 'any, less the expense of harvesting and preparing it for market. The total damage not to exceed the amount claimed in the complaint which is $1100.”

No exception was taken to this instruction. The point is evidently an afterthought. Appellant’s contention is too attenuated to deserve further consideration.

The judgment and order denying a new trial are affirmed.