Altermatt v. Rocky Mountain Fire Insurance

MR. JUSTICE GALEN delivered tbe opinion of tbe court. This action was instituted by the plaintiff to recover from tbe defendant on a policy of fire insurance because of tbe loss by fire of a dwelling-house and furniture therein contained. It was once before considered by this court on appeal (Altermatt v. Rocky Mt. Fire Ins. Co., 85 Mont. 419, 279 Pac. 243), and was remanded for a new trial. We deem it unnecessary to restate tbe facts. Upon retrial before a jury, verdict was rendered in favor of tbe plaintiff in tbe sum of $3,700, with interest thereon from April 27, 1926, and judgment was entered accordingly, from which tbe defendant appeals. Tbe defendant’s assignments of error raise question regarding tbe giving and refusal of certain instructions to thé jury. Tbe court peremptorily instructed tbe jury in accordance with tbe law as declared in our former opinion rendered in this case, as to three of which instructions given tbe defendant assigns error on this, appeal. Tbe evidence introduced was substantially the same as on tbe former trial of tbe case, as to which this court made declaration of tbe law applicable. Among other things, upon like evidence, it was by us specifically held, and we think correctly, that tbe furnishing of proofs of loss as required by the policy was waived by reason of the insurer having, in response to inquiries addressed to it respecting tbe status of bis claim, been advised that tbe premium bad not been received by tbe bead office, that no report of the issuance of tbe policy bad been forwarded, that tbe policy bad been issued by a person not recognized as its agent, and that tbe assured could take such action as be saw fit, constituting in legal effect a denial of all liability upon tbe policy. Our decision on tbe former appeal constituted tbe law appli cable to the ease on like facts, whether right or wrong, and in our opinion tbe instructions given to the jury, of which *155 complaint is made, were correct and entirely warranted by tbe evidence and the decision of this court on the former appeal. “The rule is well established and long adhered to in this state that where, upon an appeal, the supreme court in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal; and this, although upon its subsequent consideration the supreme court may be clearly of opinion that the former decision is erroneous. While a previous ruling by this court upon a point distinctly made may be only authority in other cases, to be followed and affirmed, or to be modified or overruled according to its intrinsic merits, in the case in which it is made it is more than authority; it is a final adjudication from the consequences of which this court may not depart, nor the parties relieve themselves.” (Carlson v. Northern Pac. Ry. Co., 86 Mont. 78, 281 Pac. 913, 914.) The instruction which the court refused to give, assigned as error by the defendant, was fully covered by the court in other instructions as to the law properly given. Accordingly, the judgment must be, and is hereby, affirmed. Mr. Chief Justice Callaway and Associate Justices Ford, Angstman and Matthews concur.