Hamberg v. St. Paul F. & M. Ins. Co.

• Decision Date: 24 May 1897
• Docket Number: Nos. 10,579 - (141).,s. 10,579 - (141).
• Citation: 68 Minn. 335
• Parties: GEORGE HAMBERG v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

68 Minn. 335

GEORGE HAMBERG v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.¹

Nos. 10,579 - (141).

Supreme Court of Minnesota.

May 24, 1897.

Appeal by defendant from an order of the district court for Ramsey county, Egan, J., denying a new trial after a verdict for plaintiff for $326.07. Reversed.

Palmer & Dickinson, for appellant.

C. D. & Thos. 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 identification, 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 matter 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 mention, that no expert should be allowed to answer the question asked.

3. The evidence is sufficient to sustain the verdict. The defendant did not object to plaintiff's giving in evidence the original cost price of the goods when purchased, instead of their value at the time of the loss. On none of the grounds stated by appellant can we hold that the evidence was not sufficient to make a case for the jury.

4. The policy provides that in case of a disagreement as to the amount of the loss the parties shall submit that matter to arbitration, one arbitrator or appraiser to be selected by each, the two to select a third; and that no action shall be maintained on the policy until after full compliance with this provision. Neither party attempted to comply with this provision, and plaintiff contends that the same has been waived by defendant. Plaintiff testified that after he furnished proofs of loss, and submitted to said examination, he asked defendant's adjuster if it was going to settle up now, and he answered, "No; I ain't going to pay you any money till you go in the court and fight us;" that he told plaintiff to go ahead and sue. We are of the opinion that this is sufficient evidence of waiver. 2 Bid. Ins. § 1175. The adjuster was called as a witness for defendant, and denied that he had ever made any such statement as testified to by plaintiff as aforesaid. At the close of the evidence the defendant requested the court to charge the jury that plaintiff...