Jacobs v. Norwich Union Fire Insurance Society Ltd.

PULLEN, P. J. Plaintiff sued defendant on a policy of insurance to recover for losses occasioned by the destruction by fire of personal property belonging to him.

The cause was tried before a jury and at the request of plaintiff the court submitted to the jury the following query:

“I instruct you that if the jury finds a verdict for the defendant you must state whether this verdict is based solely upon the ground that an appraisement of the loss was not had prior to the commencement of this action for a reason attributable to the plaintiff and/or the appraiser appointed by the plaintiff. Answer yes or no.”

The jury returned a general verdict in favor of defendant, and in addition answered the foregoing query in the affirmative. On the day the verdict was returned a judgment was filed, recorded and docketed in the usual form. This judgment, after reciting the title of the court and cause, set ‘forth in full the verdict and the special verdict, concluding with this paragraph:

“Whereof by virtue of the law and by reason of the premises aforesaid, it is ordered, adjudged and decreed that said defendant Norwich Union Fire Insurance Society Limited, a corporation, have and recover from said plain[3]tiff Jonathan Jacobs, costs and disbursements incurred in this action, amounting to the sum of $-.” A receipt of a copy of the notice of entry thereof was received and acknowledged by plaintiff October 3, 1932.

Upon the entry of this judgment plaintiff gave notice of intention to move for a new trial but thereafter and prior to the day set for the argument thereon withdrew this motion for a new trial and offered to stipulate that the judgment entered might be considered a final judgment and the action abated upon the ground that an appraisement of the loss was not had prior to the commencement of the action. This proposal defendant refused to accept, whereupon on October 17th plaintiff filed a waiver of his right to move for a new trial and stipulated that the judgment be considered a final judgment.

Upon the same day that plaintiff filed this waiver said judgment was upon ex parte request of plaintiff amended by interlineation, by the addition of the following words, immediately following the judgment as ordinarily entered: “Solely upon the ground that an appraisement of the loss was not had prior to the commencement of the above entitled action.”