Crich v. Williamsburg City Fire Ins. Co.

• Decision Date: 27 February 1891
• Parties: CRICH v WILLIAMSBURG CITY FIRE INS. CO.
• Court: Minnesota Supreme Court

45 Minn. 441

48 N.W. 198

CRICHvWILLIAMSBURG CITY FIRE INS. CO.

Supreme Court of Minnesota.

Feb. 27, 1891.

(Syllabus by the Court.)

1. In an action upon a policy of insurance in which a mortgagee secured by the policy is joined as a party, the court may, in case of a recovery in the action, adjust the rights of the plaintiff and mortgagee in the final judgment, and the action is properly triable by jury.

2. Evidence held sufficient to support the special findings of the jury in this action.

3. In case of the omission to lay a proper foundation for expert or opinion evidence, upon the examination in chief, if it be supplied by evidence drawn out on cross-examination, the error in admitting it is cured.

4. Whether mere ownership of property by a witness is, in the first instance, sufficient to warrant the allowance of his testimony on the question of the value thereof, is not decided.

5. Where a special verdict, including findings upon particular issues, is rendered, and there is no general verdict, it must be responsive to all the issues.

6. An omission to find upon some of the issues is not waived by a failure to except by either party.

7. But where the issues not passed upon are entirely distinct, the court may order a retrial of those particular issues only, or in proper cases, where there can be no doubt or dispute, and the defect is merely formal, or resulting from inadvertence, the court may amend the verdict.

8. The practice discussed in the opinion.

Appeal from district court, Hennepin county; SMITH, Judge.

Kitchel, Cohen & Shaw, for appellant.

Chas. P. Barker, for respondent.

VANDERBURGH, J.

1. This action is brought upon a policy of insurance issued by defendant to the plaintiff, which contained a clause making the loss payable to S. C. Gale, mortgagee. The amount due on the mortgage was less than the amount of the loss which plaintiff claims to have sustained, and which he seeks to recover in this action. The defendant insists that, under the pleadings, it was a case for the court, and not for a jury. No question is raised as to plaintiff's right to sue, or objection made that the mortgagee is made defendant, instead of being joined as plaintiff. In case of a recovery in the action for the amount claimed to have been lost by fire, the court may, under the pleadings, adjust the rights of the parties as between themselves. The relations and relative rights of these parties in no wise affect the nature of the action, which was properly tried by jury.

2. The answer, after putting in issue the ownership and value of the property, sets up other insurance, contrary to the provisions of the policy. This question arises upon the claim that two other policies upon the insured property, the Fireman's Insurance Company of Newark and the Hartford Fire Insurance Company, had not been canceled when the defendant's policy was issued to plaintiff, and the contract of insurance completed with him. This question was determined as a question of fact adversely to the defendant by the jury, and we think the evidence was sufficient to justify such finding. The policy sued on was dated October 30, 1889. The fire occurred November 2, 1889. The evidence tends to show that the Hartford policy was surrendered by plaintiff in May, 1889, and that at that time the agent of that company required that the amount of the insurance should be reduced or the policy canceled, and that plaintiff refused to consent to a reduction, but did consent to and direct a cancellation of the policy. The jury found that the Fireman's Insurance policy was canceled when this policy was issued, and on the same day, October 30, 1889, and there is evidence sufficient to support the conclusion that such was the understanding between the plaintiff and the agents of that company. After arranging with the defendant's agents for the issuance of its policy for the amount agreed on and sued for herein, the plaintiff testifies that he went to the agents of the Fireman's Company and informed them that he could get better rates with the defendant, and wanted them to cancel the Fireman's policy, to which they then and there consented, and subsequently, on the same day, plaintiff received the policy in question here. He desired to transfer the risk from the Fireman's Company to the defendant, and the cancellation of the old policy and the issuance of the new were parts of this transaction, which was completed by the issuance of the defendant's policy. The exact order in which the business was transacted between the parties is not material.

3. Objection was made by the defendant to plaintiff's competency as a witness to testify to the value of the building destroyed. The only foundation laid for his evidence, in the first instance, was the fact that he owned the house, and had lived in it for three years before the fire. The trial court overruled the objection, and admitted the evidence, upon the authority, as we understand, of Derby v. Gallup, 5 Minn. 119, (Gil. 85.) We are not agreed as to the propriety of the rule adopted by the court below, but find it unnecessary to decide the question in this case, for the reason that we think the witness disclosed sufficient knowledge on the subject upon his cross-examination to warrant the allowance of his testimony, and the error, if any, was cured. The question whether a witness is shown to be qualified to express his opinion as to the value of property is largely in the sound discretion of the trial court, and, in addition to general questions propounded to the witness to test his competency,...