New York Jobbing House v. Sterling Fire Ins. Co.

• Decision Date: 28 April 1919
• Docket Number: 3329
• Citation: 54 Utah 394,182 P. 361
• Court: Utah Supreme Court
• Parties: NEW YORK JOBBING HOUSE v. STERLING FIRE INS. CO. et al

182 P. 361

54 Utah 394

NEW YORK JOBBING HOUSE v. STERLING FIRE INS. CO. et al

No. 3329

Supreme Court of Utah

April 28, 1919

Rehearing Denied July 11, 1919.

Appeal from District Court, Third District, Salt Lake County; W. H Bramel, Judge.

Actions by the New York Jobbing House against the Sterling Fire Insurance Company and others. Cases consolidated, and, from a judgment for plaintiff, defendants appeal.

AFFIRMED.

W. M McCrea and C. S. Price, both of Salt Lake City, for appellants.

APPELLANT'S POINTS.

Courts have frequently found it necessary in the interests of justice to disregard an apparent conflict of evidence where the only evidence giving rise to a conflict is evidence which is in conflict with undisputed physical facts, natural laws and human experience. Zoccolillo v. Oregon Short Line, 53 Utah 39, 177 P. 201; Shepard v. Wichita Ice Company, 108 P. 819, 28 L. R. A. (N. S.), 649.

The Court was in error in consolidating these actions over the objection of each of the defendants when obviously the situation did not meet the requirements of the Statute. Ortman v. Union Pacific Railway Company, 4 P. 858; section 3489 Comp. Laws of Utah, 1907; Smith v. Smith, 46 P. 128.

Booth, Lee, Badger & Rich, and M. E. Wilson, all of Salt Lake City, for respondent.

RESPONDENT'S POINTS.

Even though the consolidation is technically erroneous, reversal can not be had unless prejudice or loss has been sustained by it. Peterson v. Dillon, 67 P. 397; Biron v. Edwards, 46 N.W. 813. The power to consolidate does not depend upon any statute for its existence. Hayward v. Mason, 104 P. 141.

This court has repeatedly held that it has nothing to do with the sufficiency of the evidence to justify the verdict or finding unless there is no competent evidence to support it. And, further, that in determining the insufficiency of the evidence to support a verdict, the Appellate Court will make that determination in the light most favorable to the successful party. Board of Education v. Wright Osborne Company, 49 Utah 453.

CORFMAN, C. J. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

CORFMAN, C. J.

On February 9, 1918, plaintiff commenced, in the district court of Salt Lake county, five separate suits against the defendants. Sterling Fire Island Insurance Company, Alliance Insurance Company, Rhode Island Insurance Company, Citizens' Insurance Company, and the Northern Assurance Company, as insurers, to recover loss and damage occasioned by fire to a stock of merchandise and store fixtures. The property had been insured by the several defendants under separate policies for various amounts aggregating a total of $ 15,500. To the complaints in the several suits a copy of the policy issued by the respective defendant companies was attached and made a part thereof. Each policy was of the same or standard form, gave permission for other concurrent insurance, and contained the following "reduced rate average clause":

"In consideration of the reduced rate at which and the form under which this policy is written, it is expressly stipulated and made a condition of the contract that in the event of loss this company shall be liable for no greater proportion thereof than the amount hereby insured bears to ninety per cent. of the actual cash value of the property described herein at the time when such loss shall happen, nor for more than the proportion which this policy bears to the total insurance thereon: Provided, however, that if the aggregate claim for any loss shall not exceed two per cent. of the insurance covering on the specific item of property on which claim is made, no special inventory or appraisement of the undamaged property shall be required."

Each policy also contained the following clause:

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the policy be not truly stated herein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss."

It was in substance further alleged in each of the several complaints that a fire occurred in the "Atlas Block," Salt Lake City, on the night of October 25, 1917, wherein the plaintiff's stock of merchandise and fixtures were damaged and destroyed to the extent of $ 17,500; that plaintiff had on hand at the time of the fire merchandise of the fair cash value of $ 18,000 and fixtures of the value of $ 2,000, all of which were insured, as set forth in the policy attached to and made a part of the complaint; that, although plaintiff made due proof of his loss and damage, defendant refused to pay the amount of its policy or any other sum, claiming no liability thereunder.

The several complaints were verified by the same person and subscribed by the same attorneys.

The appearance of the respective defendants in the several causes against them were also the same, and each defendant in its answer to the complaint admitted the amount of the insurance, denied the extent of plaintiff's loss, and as an affirmative defense alleged fraud, misrepresentation, and concealment in making sworn proof in writing of the loss and damage sustained by the plaintiff in violation of the express terms and provisions of the policy, and that by reason thereof the policy had become void and was of no force or effect.

After the issues had been thus joined in the several suits brought by the plaintiff against the defendants, the cases were set for trial one to follow the other. On September 25, 1918, the case against the Sterling Fire Insurance Company was first called for trial, and, before proceeding therewith, counsel for the plaintiff moved that the several cases be consolidated for the purposes of trial. The plaintiff's motion, over the objections of the defendants, was sustained and the order made that the several cases be consolidated for trial. A trial by jury was then proceeded with, the trial court according to each of the defendants the same rights and privileges it would have been entitled to had its case been tried separately. Upon the conclusion of the testimony the cases thus consolidated were submitted to the jury to make special findings as well as for the purpose of returning a general verdict.

The findings of the jury upon the special interrogatories propounded were:

"Question No. 1. Did the plaintiff, through its agent, M. F. Kady, in the proofs of loss introduced in evidence herein, willfully and knowingly and for the purpose of defrauding defendant make and swear to any false statements as to the extent, amount, and value of the property destroyed by said fire and covered by the policies of insurance in evidence herein? Answer: No.

"Question No. 2. Did the plaintiff, through its agent, M. F. Kady, in the examination under oath pursuant to the terms of the policy in evidence herein, then and there willfully and knowingly and for the purpose of defrauding defendant make and swear to any false statements as to the amount, quantity, and value of the property destroyed by said fire and covered by the policies introduced in evidence herein? Answer: No."

A general verdict was returned in each case awarding the plaintiff the amount of the policy involved; the only difference in the verdicts rendered in the several cases being the difference in amounts between the defendants' respective policies. In the aggregate the several verdicts in plaintiff's favor amounted to $ 15,500 for loss upon merchandise and $ 100 for the damages to fixtures. Judgment was entered against each of the defendants according to the amount of the verdict returned upon its separate policy. Motion for a new trial was made and denied.

The defendants assign as error and complain of the consolidation of the five cases for the purposes of trial; errors in the admission and exclusion of certain testimony; insufficiency of the evidence to justify the verdicts; and the giving of and the refusal to give certain instructions to the jury.

Was the consolidation of the cases for trial prejudicial error?

Our statute bearing on the subject of consolidation of actions for trial is copied from California. Cal. Code Civ. Proc. section 1048. It is Comp. Laws 1917, section 7219, and reads:

"Whenever two or more actions are pending at one time between the same parties and in the same court upon causes of action which might have been joined, the court may order the actions to be consolidated."

It is apparent that no authority was conferred upon the trial court to consolidate the cases under the foregoing statute. The actions were not pending "between the same parties." Conceding, as contended by plaintiff, that they might originally have been joined by reason of the "reduced rate average clause" found in each of the policies involved, the fact remains that the several policies were separate contracts, and the actions were not between the same parties. If the court had the power to consolidate the several cases for the purpose of trial, the authority to do so must be sought for elsewhere than under the express provisions of the statute above quoted. As pointed out, our statute (section 7219, supra) is copied from the California Code of Civil Procedure (section 1048). The latter is taken from the New York Code of Civil Procedure (section 817). Colorado, Idaho, Iowa, Kansas, Minnesota Missouri, Nebraska, Wisconsin, Wyoming, Arizona, Nevada, North Dakota, South Dakota, Oklahoma, and doubtless other states, also have statutes bearing on the question of procedure in the consolidation of cases for trial. We know of no case where a consolidation...