Kaufman Jewelry Co. v. Insurance Co.

• Decision Date: 05 August 1927
• Docket Number: No. 25908.,No. 25907.,25907.,25908.
• Citation: 172 Minn. 314,215 N.W. 65
• Parties: KAUFMAN JEWELRY CO. v. INSURANCE CO. OF STATE OF PENNSYLVANIA.<SMALL><SUP>*</SUP></SMALL> SAME v. AGRICULTURAL INS. CO. OF WATERTOWN, N. Y.
• Court: Minnesota Supreme Court

215 N.W. 65

172 Minn. 314

KAUFMAN JEWELRY CO. v. INSURANCE CO. OF STATE OF PENNSYLVANIA.^*

SAME v. AGRICULTURAL INS. CO. OF WATERTOWN, N. Y.

No. 25907.

No. 25908.

Supreme Court of Minnesota.

August 5, 1927.

Appeal from District Court, Ramsey County; Olin B. Lewis, Judge.

Two actions by the Kaufman Jewelry Company against the Insurance Company of the State of Pennsylvania and against the Agricultural Insurance Company of Watertown, N. Y., tried together. Verdict for defendants. From orders denying its motion for judgments notwithstanding verdicts or a new trial, plaintiff appeals. Affirmed.

Harry A. Hageman, of St. Paul, for appellant.

Doherty, Rumble, Bunn & Butler, of St. Paul, for respondents.

STONE, J.

Two actions tried together, to recover on an award of arbitrators of a fire loss under the Minnesota standard fire insurance policy. After verdict for defendants, plaintiff appeals from the orders denying its motions for judgment notwithstanding or a new trial.

In 1924 plaintiff was conducting a wholesale jewelry business in St. Paul. It suffered a fire loss on March 23d. Defendants are two of the insurers; the action against one of the others having been here already. Kaufman Jewelry Co. v. Fireman's Ins. Co., 168 Minn. 431, 210 N. W. 289. There was a failure to agree upon the amount of the loss, and an appraisal by appraisers or arbitrators appointed pursuant to the provisions of the standard policy, which require a finding by such appraisers of sound value and loss and damage. In this case, the appraiser appointed by the insurers refusing to join therein, the appraiser for the insured and the umpire fixed the sound value of plaintiff's jewelry stock immediately preceding the fire at upwards of $83,000. (For convenience of discussion we use round rather than exact figures.) The loss and damage "occasioned by said fire" was fixed at $38,000. The award itself goes no farther, but it is conceded that $18,000 was allowed for damage to stock which survived the fire, and that $20,000 is the amount fixed as the value of goods totally obliterated or which were at least in stock just before the fire, and not to be found thereafter. The fire was of short duration. There being relatively slight destruction of the shelves, trays, and other containers in which the goods were kept, it is hardly possible that $20,000 worth of jewelry was destroyed. No physical evidence of such destruction in the way of molten fragments, metallic or otherwise, was found. The strong implication is that, if this item of $20,000 was lost, it was through theft perpetrated during or after the fire.

The preliminary and controlling issue was whether the goods disappeared during the fire or so soon afterwards and under such circumstances as to result in a fire loss under the policies, or whether, on the other hand, the loss was so far independent of the fire as not to have been one resulting therefrom, and therefore not a risk insured against. The award, unexplained, indicates a consideration of that question and a decision of it in favor of plaintiff. In fact the award is explainable on no other hypothesis.

1. The first claim for appellants is that the answers, in their attack upon the award, are so general in their allegations as not to present any issue within the rule of McQuaid Market House Co. v. Home Ins. Co., 147 Minn. 254, 180 N. W. 97. There the answer consisted of general allegations of "bias and prejudice" on the part of an appraiser and the umpire "with no specific fact tending to support the conclusion of misconduct." Such generality of pleading, unaided by any charge of specific wrongdoing, was held insufficient to refute "the presumption of verity surrounding the award." The answers in the instant cases avoid that fatal error. It is averred that the appraiser and the umpire included in the award "the value of articles believed by" them "to have been stolen from the custody of the insured at a time subsequent to the fire, and that the value of such articles so included by the said appraisers * * * amounted to upwards of $20,000." The...