Hamberg v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 24 May 1897
• Citation: Hamberg v. St. Paul Fire & Marine Ins. Co., 68 Minn. 335, 71 N.W. 388 (Minn. 1897)
• Court: Minnesota Supreme Court
• Parties: HAMBERG v ST. PAUL FIRE & MARINE INS. CO.

68 Minn. 335

71 N.W. 388

HAMBERGvST. PAUL FIRE & MARINE INS. CO.

Supreme Court of Minnesota.

May 24, 1897.

(Syllabus by the Court.)

1. Plaintiff's evidence on the trial, and his examination before a notary, taken after a loss, pursuant to the terms of the insurance policy, related to the same matters, and most of the statements made on the one occasion are mere repetitions of those made on the other, but there were several material contradictions and discrepancies. Defendant offered in evidence the whole written examination, which was very long, and, when the offer was refused, proceeded to offer separately each question and answer, which was refused. Held no error; it was the duty of counsel to pick out and offer only those portions which contradicted in some degree the evidence so given on the trial.

2. Expert evidence as to whether a certain quantity of goods in a certain room could have burned up without destroying the floor, held incompetent.

3. Evidence held sufficient to sustain the verdict.

4. A provision in an insurance policy, providing for submitting the amount of loss to arbitration, is valid; but held, the insurer waived this provision by denying its liability, and telling the insured, in substance, that if he got any insurance money he would have to recover it in court.

5. The policy provided that it should be void if the insured misrepresented material facts, or was guilty of fraud. Held, the court properly refused defendant's request to charge, in effect, that the slightest possible exaggeration of the amount or value of the property destroyed, made knowingly and willfully in the proofs of loss, avoided the policy.

6. The policy provided that it shall be void in case of any fraud or false swearing by the insured touching any matter relating to the insurance, or the subject thereof, whether before or after loss. Held, such willful false swearing as to a material matter, on such examination of the insured after the loss, forfeited the whole sum due, and not merely the amount due on the particular item of damage, or for the loss of the particular article to which the false statement related.

7. The defendant pleaded, and gave evidence tending to prove, certain complete defenses. Held, the court erred in charging the jury that plaintiff was, in any event, entitled to recover a certain sum.

Appeal from district court, Ramsey county; J. J. Egan, Judge.

Action by George Hamberg against the St. Paul Fire & Marine Insurance Company. Verdict for plaintiff, and from an order denying a new trial defendant appeals. Reversed.

Palmer & Dickinson, for appellant.

C. D. & T. D. O'Brien, for respondent.

CANTY, J.

This is an action on a fire insurance policy to recover for a loss by fire. Plaintiff had a verdict, and from an order denying a new trial defendant appeals.

1. On the trial, defendant offered in evidence the two written examinations of plaintiff, each taken after the loss, at the instance of defendant, pursuant to provisions in the policy, and signed by the plaintiff before a notary public. The court, on plaintiff's objection, rejected the offer. Then defendant offered each written examination separately, and, this being refused, proceeded to offer separately each question and answer in each document. These offers were also refused, and all of these rulings are assigned as error. We are of opinion that the court was justified in refusing all the offers. The examinations in question were very long, and the statements taken thereon are largely a mere repetition of the evidence which plaintiff had already given on the trial. There are a number of discrepancies and contradictions between some of plaintiff's evidence as given on the trial and some of his statements made on these examinations, and defendant was entitled to introduce in evidence these particular statements, not merely for the purpose of impeachment, but as original evidence, for these statements are material admissions made by the plaintiff himself, which tended to contradict his evidence given on the trial. It was the duty of defendant, not of the court, to pick these statements out of the large amount of immaterial matter offered, and defendant could not evade that duty by offering separately each question and answer that appear on the 34 pages of the paper book covered by said examinations. Defendant's course was wholly unreasonable.

2. One of the firemen who was present at the fire was called as a witness by defendant, and asked the following question: “Q. I will ask you whether, in your opinion, based upon your experience as a fireman, that quantity of goods which is mentioned on those two pages there could have burned in that one room, without destroying the floor. *** I mean burned beyond recognition, without destroying the floor.” The court sustained plaintiff's objection to this as incompetent. There was one hole burned in the floor, and it was otherwise injured. We are of the opinion that the master was not a proper subject for expert evidence. So much depends on where the fire originated, the draft, the comparative inflammability of the floor and the articles in the room, the character of the carpet which protected the floor, and many other conditions too numerous to...