Knox-Burchard Mercantile Co. v. Hartford F. Ins. Co.
| Citation | 129 Minn. 292 |
| Decision Date | 07 May 1915 |
| Docket Number | Nos. 19,168-(95).,s. 19,168-(95). |
| Parties | KNOX-BURCHARD MERCANTILE COMPANY v. HARTFORD FIRE INSURANCE COMPANY and Others.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county upon insurance policies of eight insurance companies to determine the damage to plaintiff's stock of merchandise from a certain fire, and when ascertained to apportion the same among defendant companies. The case was tried before Olin B. Lewis, J., who denied defendants' motion for judgment on the pleadings, and submitted to the jury the question of the amount of plaintiff's damage. The jury returned a verdict for $13,279.39. The court made amended findings in favor of plaintiff, and apportioned the amount of the verdict among the several defendants. From an order denying their motion for a new trial, defendants appealed. Affirmed.
Todd & Kerr, for appellants.
O'Brien, Young & Stone, for respondent.
This action was brought to recover upon policies of insurance issued to plaintiff by the several defendants insuring its stock of merchandise against loss or damage by fire. Plaintiff had judgment and defendants appealed from an order denying a new trial.
The appeal presents the questions: (1) Whether there was a waiver on the part of defendants of the right of arbitration; (2) whether an incorrect theory of damages was made the basis of plaintiff's recovery; (3) whether the court erred in the admission of certain expert testimony in reference to the damages suffered by plaintiff; and (4) whether, by the removal of the damaged goods from the building in which the fire occurred, plaintiff deprived defendants of any right given by the law or the insurance contract? The questions will be disposed of in the order stated, coupled with such statements of facts as will be necessary to an understanding of each.
1. The trial below was before the court and a jury, though with the consent of the parties one question only was submitted to the jury, namely, the amount of plaintiff's loss; all other issues were determined by the court. One of the principal contentions on the trial was that no arbitration of the loss was had as stipulated in the policies and as provided for by statutes, and for this reason that plaintiff could not recover. Plaintiff claimed that defendants waived the right of arbitration. This issue was submitted to the court and decided adversely to defendants. The facts in reference to this branch of the case are substantially as follows:
The fire causing the damage for which recovery is sought occurred on the night of February 9, 1914. The property consisted of clothing and men's furnishing goods; of considerable value and in many respects badly damaged. Defendants were promptly notified of the fire, and further that the damaged goods would be removed from the building on February 24. To this removal defendants objected, and insisted that the goods remain in place, to the end that the appraisers could inspect and examine them in determining the extent of the damage thereto. To this plaintiff replied that the goods were being kept in the building at great inconvenience and expense and precluded necessary steps looking to a repair of the building which were imperative and necessary. Thereafter, on February 16, defendants designated C. S. Silke as a referee, to act for them in the matter of arbitration, and requested a like designation by plaintiff. On February 23, at the instance of defendants, Silke, and other persons who were produced on the trial as witnesses for defendants on the issue of the amount of the loss occasioned by the fire, proceeded to the building and made a full and careful examination of the damaged goods, for the purpose of enabling Silke to qualify as an appraiser in the event that the goods were removed as contemplated by plaintiff. No objection was made by plaintiff to this examination, but immediately thereafter, on the same day, plaintiff did object to the appointment of Silke as a referee on the ground that having, at the instance of defendants, made an ex parte examination of the insured property, and also estimates of the loss and damage thereto, he was disqualified to act as an impartial appraiser. The appointment of Silke was not withdrawn, or other person named in his place, and plaintiff declined to recognize him in the matter. Defendants insisted upon the appointment and demanded of plaintiff the appointment of a referee to represent it in the adjustment of the loss, and notified plaintiff that, unless such appointment was made, application therefor would be made to the court. On February 28, and within the time fixed by the contract, plaintiff selected and appointed George R. O'Reilly to act as one of the referees. This appointment and selection was objected to by defendants on the ground that O'Reilly was an attorney at law and therefore disqualified. They refused to recognize him in the matter and subsequently brought proceedings in court by which it was sought to have his disqualification judicially declared. The court held that O'Reilly was not disqualified, and the decision was affirmed in this court. 125 Minn. 374, 147 N. W. 242. Prior to that proceeding O'Reilly, acting for plaintiff, conferred with Silke in reference to the selection of the third member of the board of arbitrators. Silke, under direction from defendants, refused to recognize O'Reilly, or to act with him in the completion of the board. O'Reilly made two efforts in this respect and on each occasion Silke refused to act with him. O'Reilly represented plaintiff and his recognition of Silke as a referee was undoubtedly a waiver of the first objection made by plaintiff. A final decision in the proceeding to test the qualifications of O'Reilly was not rendered until late in May. The goods remained in the building, subject to examination, until early in March, when plaintiff removed them. After defendants had on two occasions expressly declined to recognize O'Reilly as an appraiser, and after the commencement of the court proceedings to test the question of his eligibility, plaintiff on March 27 brought this action to recover upon the policies, acting on the theory that defendants had waived an arbitration by refusing to act with O'Reilly, and by threatening a long delay in the adjustment of the loss by and through the court proceedings, which necessarily would postpone an adjustment for an uncertain time.
The trial court, upon these facts, held that there was a waiver of arbitration by defendants. We find no sufficient reason for disapproving that conclusion. The conduct of defendants throughout the matter indicated no purpose to secure a prompt and impartial appraisement of the loss. They selected an appraiser and dispatched him, with others, to the premises to make an ex parte investigation of the loss and of the damages suffered. If this act on their part did not, as a matter of law, disqualify the person so selected to act as a referee, clearly it rendered him presumptively a partisan in the matter, and defendants should have acquiesced in the objection to his continuance as an arbitrator. The fact that plaintiff intended to remove the goods from the building was no sufficient excuse for insisting upon...
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