Bolte & Jansen v. Equitable Fire Association
| Decision Date | 21 May 1909 |
| Citation | 23 S.D. 240,121 N.W. 773 |
| Parties | BOLTE & JANSEN, Plaintiff and respondent, v. EQUITABLE FIRE ASSOCIATION, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Beadle County, SD
Hon. Chas. S. Whiting, Judge
Affirmed
Joe Kirby
Attorney for appellant.
H. C. Hinckley, A. W. Bunt
Attorneys for respondents.
Suit to recover for loss under a policy of fire insurance. Action tried to a jury, and verdict and judgment for the plaintiffs for $1,576.34 and costs. A motion for a new trial, based upon a statement, of the case with exceptions, and containing all the evidence, was denied by the trial court. This appeal is from the judgment and the order overruling the motion for a new trial.
No question is raised on this appeal as to the sufficiency of the complaint. The answer admits the co-partnership of the plaintiffs and the issuance of the policy, and denies each and every other allegation in the complaint, except as thereinafter admitted.
The answer further alleges: That the defendant is a mutual benefit association, organized “Under Chapter 70, p. 197, Laws 1897, laws passed at the fifth session of the legislative assembly, and not a stock company for gain; that prior to the issuance of this policy by-laws were duly adopted by said company and have ever since remained in full force.” The only material portion of said by-laws is as follows: The answer further alleges that the plaintiffs have not chosen a disinterested party or any party to represent them on a board of arbitration to settle such loss, and that said loss has not been fixed by arbitration. As a further defense, the answer alleges: That at the time of the issuance of the policy there was other insurance on the property in the Commercial Mutual Fire Association of Mitchell; S. D., in the sum of $1,450; that defendant did not know of and never gave its consent to such additional insurance; and that said policy contained a provision as follows: “This entire policy, unless otherwise provided by an agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” No question arises on this appeal as to other matters in the answer.
The plaintiffs in their reply admit that at the time of the issuance of this policy they held another policy in the Mitchell Company, as alleged in the answer. The reply further alleges: That the defendant, in its policy issued to plaintiffs, did, by a partly written and partly printed indorsement, duly signed by its secretary, and attached to said policy when issued, consent, permit, and grant this plaintiff permission and the right to carry other insurance upon their stock of merchandise. That said indorsement, in the form of a rider clause, was pasted on said policy and formed a part thereof, and was in the following form:
It was conceded on the trial that this clause was added to the policy by the defendant company at the time the same was issued by the company.
Numerous assignments of error are presented in the abstract, but we shall notice only those discussed in appellant’s brief and shall consider all others abandoned. Edgemont Imp. Co. v. Tubbs Sheep Co., 22 S.D. 142, 115 N.W. 1130. It was claimed by appellant, upon motion for direction of a verdict, that the evidence was insufficient to show the ownership of plaintiffs, or identity of the goods destroyed by fire. A statement of plaintiffs’ evidence, which was wholly undisputed, would serve no useful purpose; but a careful examination of the record satisfies us that the evidence, there being no conflict in it whatever, was amply sufficient to sustain the verdict and to justify the court in assuming the facts of ownership and identity of the property destroyed by fire, in the charge to the jury. Bush v. Northern Pacific R. Co., 3 Dak. 445, 22 N.W. 508. Upon the trial one of the plaintiffs, Nicholas Jansen, was called as a witness to prove the value of the property destroyed. He testified, in substance: That he was, a member of the firm of Bolte & Jansen, and had been engaged in the business about 23 months when the fire occurred; that he could not state the exact value of the stock at the time of the fire, but could state his best judgment; that the store was well filled with a stock of general merchandise, dry goods, groceries, boots and shoes, and ready-made clothing; that he had sold some goods, but did not run the purchase and sale of goods to any great extent; that he had not bought the goods of wholesalers; that about I 1 months before the fire he helped take an invoice of the stock, and it showed about $3,900 of value; that the amount of stock hard increased since that time and was worth as much as when invoiced. On cross-examination he was asked: It may be noted here that the evidence previously introduced had shown that all invoices of the stock and many of the books of account belonging to the firm had been destroyed in the fire. The witness thereupon was asked as to the value of the stock at the time of the fire objection: “No sufficient foundation laid.” We think the foundation laid was sufficient to permit the witness to give his best judgment as to the value of the stock in the store building at the time of the fire. The weight of this evidence was for the jury. Enos v. St. Paul F..& M. Ins. Co., 4 S.D. 657, 57 N.W. 919; Elliott on Ev. Vol. 3, § 2316.
The following facts, briefly stated, appeared by undisputed evidence: Immediately after the fire, the plaintiffs notified defendant by letter of the loss and asked them to send an adjuster. The company replied by letter that a man would be sent. Mr. Frudenfeld, secretary of the defendant company, came shortly after the fire; did not do anything, but asked to look at the books, and they were shown him. He thereupon said to plaintiffs that they had carried other insurance without the defendant’s knowledge, that defendant was not responsible, and that, if plaintiffs were about to start a lawsuit, they had better arbitrate, but did not offer to settle the loss by arbitration; said he was sorry plaintiffs did not have any claim against the company. Defendant never selected any one to arbitrate. Frudenfeld, when called as a witness for the defendant, was not asked concerning the conversation above stated. Defendant offered no evidence as to the value of the property upon the trial. At the close of plaintiffs’ evidence, defendant moved for a direction of a verdict on various grounds, which motion was denied, and was renewed at the close of the trial, but need not be noticed at this time, as the question raised upon said motion will be hereinafter referred to so far as discussed in appellant’s brief. The secretary, L. S. Frudenfeld, was called as a witness...
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