Powers Dry Goods Co. v. Imperial Fire Ins. Co.
| Decision Date | 08 February 1892 |
| Citation | 48 Minn. 380 |
| Parties | POWERS DRY GOODS CO. <I>vs.</I> IMPERIAL FIRE INS. CO. OF LONDON. |
| Court | Minnesota Supreme Court |
at St. Paul, Minn., a business corporation dealing in dry goods at wholesale, and had on that day in its building, on Fourth street, merchandise of the value of $345,275.45. It had insurance against fire on this stock to the amount of $387,000, distributed among a great number of insurance companies. The defendant was one of these, and had insured plaintiff $5,000 for one year by a policy corresponding in form to the Minnesota standard policy prepared by the insurance commissioner, under Laws 1889, ch. 217. By the terms of the policy, $500,000 concurrent insurance was permitted.
A fire occurred November 27, 1890, by which the insured property was damaged to the extent of $152,861. Notice was immediately given the defendant and the other companies. Their adjusters arrived on November 29th after the fire, but were unable to agree with plaintiff as to the amount of the loss. On December 5, 1890, plaintiff demanded in writing that the amount of loss be ascertained by appraisers in accordance with the provisions of the policy, and stated it was ready to proceed forthwith, and to name an appraiser, and it demanded that defendant should act promptly. On December 12, 1890, defendant consented to such appraisal. Each party named an arbitrator. Plaintiff named C. H. Kellogg, of St. Paul, and defendant named P. A. Larson, of Lake Crystal, but he did not arrive in St. Paul until December 16th, when the two met to select an umpire. Defendant did not leave the choice of an umpire to said appraisers, but gave its appraiser instructions to insist on either Reuben Warner or P. T. Kavanaugh, whose names it furnished him, and to refuse all others. Plaintiff's appraiser proposed 11 different competent men, successively, but each was rejected by defendant's appraiser. Thereupon Mr. Kellogg accepted Mr. Warner, one of the two proposed by defendant's appraiser, and he was notified, but he promptly declined to serve. Defendant then gave positive instruction to Mr. Larson, its appraiser, to insist on Mr. Kavanaugh for umpire, and to agree to no one else. On the next day Mr. Larson resigned, and left the city. On December 18th defendant appointed Mr. Kavanaugh its appraiser in Larson's place, and notified plaintiff, but it refused to arbitrate, on the ground that it could no longer delay its business or suspend sales, as its expenses were about $5,000 per month, its business suspended, the stock depreciating, its customers going elsewhere, and it believed defendant to be acting in bad faith to compel it by delay to accept a compromise.
As soon as practicable after the fire, plaintiff made an inventory of its stock of goods, except those on the third floor of one of the stores. Those were in part consumed in the fire, and the residue were so badly injured and disfigured that no proper inventory of them could be made. This inventory consisted of about 400 pages of typewriting, and was at the disposal, and for the inspection, of all the insurance companies interested. On December 23d the defendant, and other companies acting in concert with it, demanded that plaintiff furnish them a complete inventory of the stock. Plaintiff thereupon made and furnished copies of this inventory, stating that the goods on said third floor were so completely destroyed that it was impossible to make an inventory of them, but that its books showed their aggregate cost to be $56,529.39, exclusive of freights; that this amount was arrived at by taking the inventory made in July previous, and adding the cost of goods put in, and deducting the amount sold out.
This action was commenced March 2, 1891, to recover of defendant its proportion of the loss. It was tried May 18, 1891, before Judge Cornish and a jury, who returned a verdict for plaintiff for $2,009.51, the full amount claimed, with interest. Defendant moved the court, on a settled case, for a new trial, but was refused, and it appealed.
Young & Lightner, for appellant.
Lusk, Bunn & Hadley, for respondent.
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The property for the loss of which a recovery is sought on the defendant's policy of insurance consisted of a wholesale stock of dry goods, contained in two contiguous buildings in the city of St. Paul, one of which is distinguished as the "three-story building." Two grounds of defense are to be considered. The first is that, as to the goods contained on the third floor of the three-story building, the plaintiff did not comply with the express terms of the policy, which required the insured, in case of loss, to "make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon." The second ground of defense is that the plaintiff did not comply with another provision of the policy, to the effect that, in case of disagreement of the parties as to the amount of the loss, the same should be ascertained by appraisers, one of whom should be selected by each of the contracting parties. The two appraisers so selected were to choose an umpire. In fact no such particular inventory as is specified in the policy was made of the goods on the third floor of the three-story building; but the plaintiff's position in the case is that it complied with this requirement of the policy as far as could be done, and that the extent and nature of the damage done by the fire in this apartment was such that an inventory of the goods could not be made. The court submitted it to the jury to determine whether the fact was in accordance with the contention of the plaintiff, instructing the jury, in effect, that the failure to make such an inventory would not preclude a recovery if, by the exercise of all reasonable...
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