The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1925-05-28

motion for judgment Notwithstanding
! the verdict, but granting new trial
both parties appeal.
AFFIRMED: ="
Opinion of the Court by Christian.
| son, CHI. j.
Divet, Holt, Frame & Thorp, and
d. X. Divet, all Of Fargo, N. Oak.
and Roger l. Wykes, of Grand Rap.
| ids, Michigan, Attorneys for Plain
| tff.
COMFY, Young & Burnett, Fargo
N. Oak, Attorneys for Defendant.
From Richland County
Lawrence Jentz,
Plaintiff and Respondent.
National Casualty Company,
corporation,
Defendant and Appellant.
!. Under the terms, of health
insurance polic,, the insured was
required to give notice of claim,
within forty days of the beginning
of the disability unless such notice
may be shown not to have been rea-
scnably possible" Under the facts
disclosed in the record in regard to
the nature of the illness and the
knowledge thereof acquired by the
defendant company, an admission of
liability under the policy amounts to
a construction by the company of
the provision regarding notice, and
such construction is persuasive, if
| not conclusive, evidence of substan-
| tial compliance with the conditions
| requiring notice and proof of loss.
2. The insured claimed indemnity
under paragraph in policy pro-
viding for a stipulated rate during
the time the insured is Unnecessarily,
| continuously and actually confined
within the house" The court in
structed the jury that the mere fact
that the insured was able to walk
! from his house to the doctors office,
or take a railroad train to go to a
hospital for treatment, did not in
i itself necessarily break the contin-
| uty of the confinement or the con-
| secutiveness of the number Of days
he may have been confined to the
house, sw;thin the meaning Of the
paragraph controlling indemnity for
combining illness; it is held that
under the evidence, Such instruction
was not erroneous. ~
g. 1t is held, under the evidence,
| hot l,p 10 8
does not, as a matter of law, result
wholly or in part from rheumatism
and that the liability of the defend
ant company to an insured suffering
from torticollis is not necessarily
controlled by the policy paragraph
regarding chronic diseases.
a. 1t is held, for reasons stated
in the opinion, that the evidence of
a lay-witness, who testified to the
condition of the plaintiff as observed
by him, is competent.
| 5. Where a cause is submitted for
a special verdict, the question of liza
bility should not be submitted to the
! jury.
6. Where the jury, in response to
questions, renders a complete special
erdict-fnding all the facts essen
tial to the rendition of Judgment
the verdict is not vitiated by an
swers to surplus questions which
were not properly submitted, the
answers not being inconsistent with
the answers to questions properly
submitted.
Appeal from the District Court OF
Richland County, Hon. Geo. NJ. Nc.
kenna, Judge.
AFFIRMED:
Opinion of the Court by Birdzell
Forbes, Lounsbury & Forbes
Wahpeton, N. OAK, Attorneys fol
Appellant.
W. E. Purcell, Wahpeton, N. Oak.
Attorney for Respondent.
From Barnes County
Casper +. Raasch,
! Plaintiff and Appellant
George o. Goulet,
Defendant and Respondent
SYLLABUS:
l. Where c entered into an exc
cutory contract with L for the sale
to the latter of certain real proper
ty in North Dakota and l. is placed
in possession under his contract
and, where l., thereafter, while il
such possession, and with the know
ledge of acquiescence of c, sells tn,
premises to r. r. becomes an as
signee of l. within the purview O
Section 8l19-8122, c. l.. 1918, and i
is incumbent upon C in the event h,
desires to cancel the contract will
l. as against r as assignee to serv,
notice of cancellation upon C.; an,
service of notice of cancellation up
on l., alone, does not cancel or for
felt the rights acquired by R as as
signee of L. Williams v. Corey e
al, Fl N. D. 500, 131 N. w. Asst, 70
: lowed.
2. The plaintiff, in an action TO
strength of his own title and not Of
that Of the weakness of that of hi
adversary.
3. In the instant case plaintiff
sued for the conversion of certain
grain and hay. For reasons state
in the opinion it is held that plain
p TEAM