Reliance Motor Co. v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 08 January 1926
• Docket Number: No. 24992.,24992.
• Citation: 206 N.W. 655,165 Minn. 442
• Court: Minnesota Supreme Court
• Parties: RELIANCE MOTOR CO. v. ST. PAUL FIRE & MARINE INS. CO. et al.

206 N.W. 655

165 Minn. 442

RELIANCE MOTOR CO. v. ST. PAUL FIRE & MARINE INS. CO. et al.

No. 24992.

Supreme Court of Minnesota.

January 8, 1926.

Appeal from District Court, St. Louis County; Martin Hughes, Judge.

Action by the Reliance Motor Company against the St. Paul Fire & Marine Insurance Company and others. After verdict for plaintiff, from an order denying the named defendant's motion for judgment or a new trial, it appeals. Affirmed.

Archer & Rosemeir, of Virginia, Minn., for appellant.

Boyle & Montague, of Virginia, Minn., and Nelson & Cedergren, of Duluth, for respondent.

LEES, C.

This is an appeal from an order denying the motion of the defendant insurance company for judgment or a new trial. The action was brought on a policy of fire insurance, was tried by jury, and a verdict returned in respondent's favor for $370. A reversal of the order is sought because respondent failed to make proofs of loss within 60 days after the fire, and because the verdict is excessive.

The property insured was a motor truck, which one Maki had purchased from respondent under a conditional sales contract. Maki had taken out the policy in his own name, but at the trial it was stipulated that the policy should be reformed to make the loss payable to the respondent as its interest appeared.

The fire occurred on May 16, 1924. No written proofs of loss were furnished, but appellant received notice that a loss had been sustained within three or four days after the fire. The court instructed the jury that, unless there had been a waiver of proofs of loss, respondent could not recover; hence the jury must have found that there had been a waiver.

There was evidence tending to show that appellant's local agent at Virginia, who had issued the policy, was told of the loss and notified appellant. In response to the notice, Win H. Larkin, an adjuster for appellant, went to Virginia and, accompanied by respondent's president, visited the scene of the fire, and discussed a settlement of the loss. Larkin offered to pay $75 or $100, but respondent refused to accept the offer. On one or more occasions thereafter, the local agent informed respondent's president that Larkin would call on him the next time he was in Virginia, but Larkin failed to do so. On June 30, 1924, respondent wrote to appellant's local agent, demanding $500 in settlement of the loss, and asking the agent to have Larkin make a settlement or arrange for an appraisal. There was no answer to this letter.

Larkin admitted that he visited the place of the fire with respondent's president, and obtained some information about the fire, but stated that he made no offer of settlement. He also admitted that he obtained all the information he desired, and had a blank proof of loss in his pocket partially filled out, but did not ask respondent's president to sign it, or inform him that it would be required.

It is unnecessary to consider whether Maki's failure to make proofs of loss as required by the policy would bar a recovery by respondent, whose rights are virtually those of a mortgagee. The court submitted the case to the jury on the theory that there could be no recovery, unless proofs of loss had been waived, and the trial proceeded on that theory.

The general...