Bartow v. Northern Assur. Co. of London, England

• Decision Date: 14 July 1897
• Citation: 72 N.W. 86,10 S.D. 132
• Parties: BARTOW v. NORTHERN ASSUR. CO. OF LONDON, ENGLAND.
• Court: South Dakota Supreme Court

72 N.W. 86

10 S.D. 132

BARTOW v. NORTHERN ASSUR. CO. OF LONDON, ENGLAND.

Supreme Court of South Dakota

July 14, 1897

Appeal from circuit court, Aurora county; D. Haney, Judge.

Action by J. D. Bartow against the Northern Assurance Company of London, England. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

Palmer Preston & Rogde, for appellant. W. M. Smith and H. F Fellows, for respondent.

CORSON P. J.

This is an action upon a policy of insurance issued by the defendant upon a stock of goods. Verdict and judgment for plaintiff and the defendant appeals.

The plaintiff in his complaint alleges that the defendant is a corporation; that on the 23d day of February, 1895, the defendant issued to plaintiff a policy of insurance, and thereby insured the plaintiff against loss or damage by fire in the amount of $2,000, upon his stock of general merchandise in the city of Plankinton, S. D.; that at the time of the making of the said insurance, and from then until the fire thereinafter mentioned, he was the owner of the whole of said stock of goods; that on the 17th day of February, 1895, said stock of goods was damaged, and in part destroyed, by fire to the amount of $11,858.72, $2,000 of which loss was covered by the said policy of insurance; that the plaintiff duly fulfilled all the conditions of said insurance on his part, and more than 60 days before the commencement of this action, to wit, on the 16th day of March, 1895, he gave notice, and made and served proofs of loss, and duly demanded payment of the said sum of $2,000 and that no part of the same has been paid. The defendant, by its answer, admitted its incorporation, and that it issued the policy described in the complaint. As to the other allegations of the complaint, its denial was as follows: "That as to whether, at the time of the making of said insurance, and from then until the alleged fire, the plaintiff had an interest in the property insured, as the owner or otherwise, of any part thereof, and to an amount exceeding the said amount of insurance, or in any amount, or any amount whatever, or that on the 17th day of February, 1895, or at any other time, the said merchandise was damaged, and in part destroyed by fire, to the amount of $11,858.72, or in any other sum or any sum whatever, this defendant had no knowledge or information sufficient to form a belief, and therefore denies the same. Defendant avers that if there was any damage by fire, as alleged by plaintiff, to said stock of merchandise, the same does not exceed the value of $3,000; denies that it is indebted to plaintiff in the sum of $2,000 or any sum, or in any sum whatever. Denies each and every allegation, matter, and thing in plaintiff's complaint, except what is hereinbefore specifically admitted or denied." And, as defenses to the action, the defendant pleaded that, prior to the execution and delivery of the policy, the plaintiff had taken out, and had in force, policies in other insurance companies, contrary to the stipulations contained in the policy issued by the defendant; that, after the issuance of the policy by defendant, the plaintiff took out, and had in force at the time of the fire, policies in other companies, contrary to the stipulations in said policy; and that the plaintiff kept and used upon his premises gasoline, in violation of the stipulation in his said policy. To the affirmative defenses pleaded by the defendant, the plaintiff, by order of court, made reply as follows: "The plaintiff, for reply to the defendant's affirmative answer, says that the defendant made and delivered to the plaintiff the contract of insurance sued upon, and accepted from the plaintiff payment of, and retained the premium therefor, with full notice, information, and knowledge that the plaintiff had other insurance upon the property covered by said policy in an amount equal to the amount carried thereon, at the time and after the issuance of the said policy. And the plaintiff further says that the defendant at the time it made said policy of insurance, and accepted payment of the premium therefor, was notified and informed and had full knowledge of the fact that the plaintiff would procure other insurance on said property, and made, executed, and delivered said contract of insurance, and continued the same in force and effect, after the time of the destruction of the said property by fire, with full notice and knowledge of the existence of all of the other and additional insurance on said property, and consenting thereto. The plaintiff, for further reply to defendant's answer, denies that at the time of the issuance of said policy, or at any other time during the existence of said policy, he kept, used, or allowed gasoline on the premises described in the policy. And the plaintiff further says that, by reason of the foregoing facts, the defendant waived all the provisions set out in the affirmative answer, referring to other or additional insurance upon the property covered by defendant's policy."

The case was tried to a jury, but no general verdict was rendered, and two questions only were submitted to the jury, as follows: "First. Was gasoline kept or allowed on the premises described in the policy after it was issued?" Answer: "No." "Second. What amount of damage was caused by the fire to the property covered by the policy?" Answer: "$7,433.44." Upon the verdict, the court entered judgment in favor of the plaintiff for the sum of $1,571.85, with costs, taxed at $95.25. No other special verdict was rendered by the jury. The appellant contends that this special verdict was insufficient upon which to base a judgment, as the issue of the ownership of the property at the time of the fire, the issue of the commencement of the action, more than 60 days after the proofs were made and served and notice given, the issue of the waiver of other policies in other companies, taken out before and subsequently to the issuance of the policy in controversy, and prior to the fire, were not found by the jury by their special verdict, and, there being no general verdict, they remain undetermined and undisposed of. The respondent meets this contention by the proposition--First, that the denials in the answer were insufficient to raise the question of ownership of the property; and, second, that the evidence upon this issue and the issue of the time of the commencing of the action and the waiver pleaded in the reply were uncontradicted, and hence findings upon these issues were not required. But, in our opinion, neither of these propositions of respondent is tenable. The claim of respondent that a denial of knowledge or information sufficient to form a belief as to the ownership of the property at the time of the fire could not be made by the defendant, as it was presumed to know or to be able to ascertain the fact of ownership, cannot be sustained. The defendant was a foreign corporation, and could not be presumed to know who was the owner of the goods at the time of the loss, and it could not be required to ascertain this fact before pleading to the complaint. "The true distinction to be observed in determining when a defendant may avail himself of the privilege afforded to him of answering in the qualified form allowed by the Code, and when he must positively admit or deny the allegations, is to inquire whether the facts are presumptively within the defendant's knowledge. If they are, he cannot avail himself of this form of denial." 1 Enc. Pl. & Prac. 811; Kellogg v. Baker, 15 Abb. Prac. 286; Gribble v. Brewing Co., 100 Cal. 67, 34 P. 527; Elmore v. Hill, 46 Wis. 618, 1 N.W. 235; Morton v. Jackson, 2 Minn. 219 (Gil. 180). Generally, it is only the personal acts of the party answering, whether a natural person or a corporation, or matters of record, that will be presumed to be within the personal knowledge of the party. The act of an agent will be presumed to be within the knowledge of his principal, and the same rule applies to corporations and their agents. Shearman v. Central Mills, 1 Abb. Prac. 187; Loveland v. Garner, 74 Cal. 298, 15 P. 844; Beyre v. Adams, 73 Iowa, 382, 35 N.W. 491; Railway Co. v. Carrico (Ky.) 26 S.W. 177. Under no rule laid down in the books could the defendant be presumed to know who was the owner of the goods destroyed by the fire in the case at bar. It was authorized by statute to raise this issue by this form of pleading, and require the plaintiff to make proof as to such ownership; and such seems to have been the view of plaintiff's counsel at the time of the trial, as proof was introduced on the part of plaintiff to prove his ownership of the goods. The allegation that more than 60 days had elapsed after notice and proofs of loss, before the action was commenced, was denied by the general denial.

The second proposition, that the issues, being established by uncontradicted evidence, will not be required to be found by the jury, is not supported by the authorities. The law upon this subject was thus laid down by this court in Humpfner v. Osborne, 2 S. D. 310, 50 N.W. 88: "A special verdict, as contended by counsel, must find, on all the material facts put in issue by the pleadings, when no general verdict is returned with the special verdict; and this is the case although the evidence may establish beyond controversy the existence of the facts not found." And this seems to be the settled...