Supornick v. National Retailers Mut. Ins. Co., 32444.
| Decision Date | 14 March 1941 |
| Docket Number | No. 32444.,32444. |
| Parties | SUPORNICK v. NATIONAL RETAILERS MUT. INS. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Clayton Parks, Judge.
Action by Joseph Supornick against the National Retailers Mutual Insurance Company to recover on a fire policy. From an adverse order, the plaintiff appeals.
Order affirmed.
Sydney W. Goffstein and Carl W. Cummins, both of St. Paul, for appellant.
Harold C. Kerr and Walter T. Ryan, both of St. Paul, for respondent.
Plaintiff sues as assignee of rights of insured under a Minnesota Standard policy of fire insurance. There was a loss, the amount of which was determined by a board of appraisers appointed pursuant to the policy. 1 Mason Minn.St.1927, § 3512. As defense to action on the award, the insurer alleged attempted fraud by the insured after the fire, first in their statement of loss and damage, and second in the hearing before the appraisers.
1. It is enough of the facts to say that there is evidence from which the jury could reasonably have found, as they did, for defendant on that issue. Cf. Hodge v. Franklin Insurance Co., 111 Minn. 321, 126 N.W. 1098. They might have found that the insured, fraudulently and with intent to procure from defendant payment of much more than their actual loss, exaggerated both sound value and damage in their written statement submitted to defendant. Cf. Bahr v. Union Fire Insurance Co., 167 Minn. 479, 209 N.W. 490; Studer v. Hudson Insurance Co., 179 Minn. 289, 229 N.W. 88. The evidence also supports the conclusion that the fraudulent effort was repeated before the appraisers.
2. The jury was charged in substance that the defendant should have the verdict if, by preponderance of evidence, it had established its affirmative defense of attempted fraud. Plaintiff assigns as error the failure of the trial court to hold as matter of law that defendant had waived its defense of attempted fraud. This issue of waiver by defendant was properly made by the reply. Plaintiff's claim is that after having procured knowledge of the attempted fraud, if any, defendant did not promptly and unequivocally deny liability but went on with the appraisal. 7 Couch, Insurance, § 1622; Veenstra v. Farmers' Mutual Fire Ins. Co., 195 Mich. 55, 161 N.W. 824; cf. Marblestone Co. v. Phoenix Assurance Co., Ltd., 169 Minn. 1, 204 N. W. 42, 210 N.W. 385.
The trouble with this point is that it is not now open for consideration on the record. Plaintiff submitted nine requests for instructions with no mention in any concerning the supposed waiver by defendant. In finishing the charge, the trial judge asked counsel for "any corrections or suggestions." The answer for plaintiff, was "No." In addition, plaintiff's motion for new trial in his 15 specifications of error, is again significantly silent on the issue of waiver by defendant. It may be that when the case went to the jury, counsel for plaintiff felt that in any event, as to evidence of attempted fraud by insured in the hearing before the appraisers, there could have been no waiver. Whatever the reason, it is clear that the theory of the submission of the case to the jury, plus silence in the specifications of error in the motion for a new trial, removes the matter from the scope of this appeal. 2 Mason Minn.St.1927, § 9327; Parten v. First Nat. B. & Trust Co., 204 Minn. 200, 283 N.W. 408, 120 A.L.R. 862; White v. Mazal, 192 Minn. 522, 257 N.W. 281.
3. Another assignment of error goes to the admission of the opinion testimony of a member of the St. Paul fire department. His opinion was asked whether five cigarette cases could have been "entirely burned without burning those wooden supports off." It had already appeared that a considerable pile of cigarettes in original packages had been destroyed without leaving substantial evidence of combustion. The objection to the question was that it was "without foundation, no length of time shown." That did not challenge the examination as going beyond the field of opinion testimony. Cf. Hamberg v. St. Paul Fire & M. Ins. Co., 68 Minn. 335, 71 N.W. 388. Aside from that, it is enough to say that in allowing the question, which was answered in the negative, there was no prejudicial error. 5 Dunnell, Minn.Dig., 2 Ed. & 1934 Supp., § 7180; Moe v. Paulson, 128 Minn. 277, 150 N.W. 914; Rennie v. Skellett Co. 151 Minn. 63, 186 N.W. 130. Any adverse effect of the question upon plaintiff's case was largely removed by...
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