Dakin v. Queen City Fire Ins. Co. of Sioux Falls, S.D.

• Decision Date: 18 July 1911
• Citation: 117 P. 419,59 Or. 269
• Parties: DAKIN v. QUEEN CITY FIRE INS. CO. OF SIOUX FALLS, S.D.
• Court: Oregon Supreme Court

117 P. 419

59 Or. 269

DAKIN v. QUEEN CITY FIRE INS. CO. OF SIOUX FALLS, S.D.

Supreme Court of Oregon

July 18, 1911

Appeal from Circuit Court, Multnomah County; William N. Gatens Judge.

Action by R.H. Dakin against the Queen City Fire Insurance Company of Sioux Falls, South Dakota, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover the amount of an insurance policy. It is alleged in the complaint in effect that defendant is a corporation, and on June 17, 1908, in consideration of the payment of the required premium, it issued to plaintiff a policy stipulating to indemnify him against injury by fire occurring within a year, to a stock of drugs, etc., and to the store and fixtures in which the medicines were kept at Mt. Angel, Or., to the extent of $700 and $500, respectively that about September 1, 1908, the insured property was wholly destroyed by fire, and defendant was immediately notified thereof, whereupon its general agent, John C. Fox, came to adjust the loss, and plaintiff furnished him a written statement of the property consumed, as nearly as he could from memory, all his books and papers having been destroyed and such agent promised to make out, from the memoranda submitted, formal proof of loss and return the same to plaintiff for signature and verification; that Fox failed to keep such promise, but plaintiff relying thereon did not make out or sign any other memorandum of loss until March, 1909, when he delivered to defendant a detailed, written and verified statement thereof, which was returned to him, whereupon he prepared and submitted amended proof; that plaintiff had kept and performed all the conditions of the policy required of him, except the making of the proof of loss within 60 days after the fire, and his delay in this respect was caused by the conduct and promises of defendant; and that no other insurance was ever placed on any of the property, the value of which at the time of the fire exceeded $1,200, for which sum judgment was demanded. The answer admitted that the defendant is a corporation; that it executed the policy mentioned; that the insured property was totally destroyed August 30, 1908; and that plaintiff did not sign or submit any proof of loss until March 29, 1909, when the memoranda furnished was returned because of insufficiency and another was supplied April 27th following, which was equally defective. The other averments of the complaint are denied generally. For separate defenses certain conditions of the policy were set forth and breaches thereof averred, but all the stipulations are abandoned, except the one relating to the proof of loss. The reply having denied the allegations of new matter in the answer, the cause was tried, resulting in a judgment for plaintiff in the sum of $1,000, and defendant appeals.

W.E. Farrell, for appellant.

H.M. Cake, for respondent.

MOORE J. (after stating the facts as above).

It is maintained that an error was committed in permitting the defendant's agent who solicited the insurance to testify, over objection and exception, respecting the value of a stock of drugs, medicines, etc., when it appeared that he had no special knowledge of that class of goods. M.J. Van Valkenberg, as plaintiff's witness, testified that before the policy was issued he, as defendant's agent, examined the goods and fixtures involved herein and estimated their values at $1,200 and $1,000, respectively. It does not appear that this agent had any special knowledge of the value of the stock of goods, and if his estimate thereof was limited to the value at the time of the fire it is possible that the error in permitting him to testify in relation thereto might have been prejudicial. It is fair to assume that the value of a stock of goods kept for sale will constantly fluctuate, and that the worth will be increased or diminished by the sale and replenishing of the merchandise. Since the indemnity for the loss of the goods by fire was placed at $700, it may be supposed that the agent considered the merchandise of an equal or a greater value when the policy was issued. The fact that Van Valkenberg saw the drugs, medicines, etc., contained in bottles, boxes, and packages would not enable him to estimate the worth of that class of goods, unless he had some special knowledge in relation thereto. A person who had never heard or read of a diamond would be a very poor judge of the value of such a precious gem when first seen by him. We believe that Van Valkenberg was not competent to estimate the worth of the drugs, but, as the value which he placed thereon had but little bearing on the worth of the stock of goods destroyed by fire, the error was not prejudicial.

The appraisement made by such agent of the fixtures which were burned stands on a different footing. The shelving, counters, showcases, etc., were not sold. They were, however, in such general use that persons of ordinary intelligence who had seen them ought to be able to give a fair estimate of their worth. Ruckman v. Imbler Lumber Company, 42 Or. 231, 70 P. 811. If an opinion were based on a hypothetical question as to the value of such goods, Van Valkenberg's judgment might not have been sufficient, but as he saw the fixtures he must have had some reasonable conception of their worth. In any event, his estimate, in our opinion, is not so prejudicial as to necessitate a reversal of the judgment.

The plaintiff having been permitted over objection and exception, to testify that a safe injured by the fire cost $300 in Chicago, in 1905, and that he paid freight charges thereon of $100, it is maintained that an error was thereby committed. The value of insured goods at the time of their destruction by or injury from fire affords the measure of indemnity for the loss. A fireproof or a burglar proof safe is not subject to deterioration by ordinary use, as are many articles of merchandise kept in a store, so that the cost of a safe may furnish its fair value, unless it has been supplanted by a more modern or superior strong box, or its price lessened by competition. The defendant's counsel had an opportunity, on cross-examination of plaintiff, to show the reasonable worth of the safe at the time of the fire, so that in permitting him to testify as to the cost of and transportation charges upon the safe no error was committed.

It is contended that certain correspondence between plaintiff's attorneys and defendant's general attorney and between them and John C. Fox, its general agent, should have been received in evidence, and that in excluding this epistolary intercourse errors were committed. The letters chiefly relate to arguments adduced by the respective parties for and against the payment of the loss produced by the fire, and the reasons for and effect of not making proof of loss within the time prescribed. The reasoning thus set forth could as well have been orally made by counsel at the trial, as was probably done, and any statement of fact contained in the letters could have been detailed by witnesses called for that purpose. The letters, in our opinion, were inadmissible, and no errors were committed in refusing to receive them.

The plaintiff...