The Liverpool v. Creighton

• Decision Date: 31 January 1874
• Citation: 51 Ga. 95
• Court: Georgia Supreme Court
• Parties: The Liverpool, London and Globe Insurance Company, plaintiff in error. v. J. H. & W. Creighton, defendants in error.

51 Ga. 95

The Liverpool, London and Globe Insurance Company, plaintiff in error. v. J. H. & W. Creighton, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Insurance. Conditions. Before Judge Schley. Chatham Superior Court. January Term, 1873.

J. H. & W. Creighton instituted suit against the Liverpool, London and Globe Insurance Company on two policies of insurance, one for $10,000 00, and the other for $5,000 00, claiming as due them for damage by fire, and from said defendant's having taken possession of the insured property at said fire, and having failed to return the same, $7,131 76, besides interest.

The defendant pleaded as follows:

1st. That said contracts of insurance were made subject to certain conditions and stipulations indorsed on each of said policies, one of which was, "that in case of difference of opinion as to the amount of loss or damage, such difference *shall be submitted to the judgment of two disinterested and competent men, and mutually chosen, (who, in case of disagreement, shall select a third,) whose award shall be conclusive and binding upon both parties." That subsequent to the alleged loss, to-wit: on March 13th, 1871, there being a difference of opinion between the plaintiffs and the defendant as to the amount of the loss, the defendant offered to comply with said condition, and requested the plaintiffs so to do, which they refused.

2d. That the plaintiffs only suffered a loss by fire to the amount of $1,099 14, which the defendant has always been ready and willing to pay.

The following evidence was introduced for the plaintiffs:

1st. J. H. Creighton, sworn: Witness is one of the plaintiffs. Kept a store at 174 Bay street, when the fire occurred in that block, February 27th, 1871. The day after the fire, found the key of the store in the possession of J. E. Johnston & Company, agents of the defendant. Witness could not get into the store until they opened it and let him in. Found goods in the store in dreadful condition. An estimate of loss was then made under agreement with Mr. Minis, one of the firm of J. E. Johnston & Company; he proposed that the goods should be arranged for examination by our clerks and others that he might send, at the expense of his office; this was done and paid for by him; a large amount of goods was found to be missing. An inventory of goods saved was taken, which amounted to $10,953 62. Foreign imported goods and domestic goods were kept separate on the books, because the Savannah house was allowed a bonus on foreign goods of twenty-five per cent., and this was therefore added to the invoice price in estimating the value of goods in store. The amount of goods in store before the fire, as appeared by the books, was $15,493 29; had received $37,804 61 in all up to the time of the fire; had sold $25,711 91; then deduct $18,000 00 and $4,539 00 would be the amount ofgoods missing. The damage to the goods saved was about *fifty per cent., though we did not claim that amount; we claimed twenty-five per cent., equal to $2,738 40; after the statement had been made out it was found that a further deduction $140 31 should be made from the amount claimed on account of goods sold which did not appear on the books; the defendant offered to pay in full settlement about $2,500 00. When 1 found there was no prospect of a satisfactory settlement, I made out a sworn statement and left it at the office of the agents of the defendant; there was no dispute about the quality of goods in the store after the fire. The foreign goods kept by plaintiffs were of the best quality; domestic goods were such as are commonly found in Savannah. The invoice book and journal of plaintiffs presented to witness and identified by him.

Cross-examined: Hugh Creighton, one of the original firm, died in the fall of 1871; at the time of the fire my residence was seven miles from Savannah, where I went every night. Neither of the partners resided in the city; I heard of the fire next morning from Dixon, who went out to inform me, and I returned with him; I had to go to the office of the agents of the company to get the key of the store; I saw the key that morning, for the first time after the fire, in the hands of a man in their employ; I staid until one or two o'clock; they had commenced to put the goods in order: Dixon, Wilson and Catherwood were employed by the defendant to assist in putting the goods in order; don't know who else the defendant employed; never went back to the store until the goods were arranged; was absent from the city several days; Dixon came out to let me know when the work was done; some of the goods were received from the police barracks that had been captured when stolen; the goods found in the store had been damaged in carrying them out in the streets. None were burned and none wet, but they were dirty, trampled on and tossed about; the store was not burned. The defendant offered arbitration about damage— before inventory taken they agreed to pay for lost goods; after all the goods were fixed up, and it was found that the missingwould amount to $4,000 or more, they declined to pay.

*2d. John Y. Dixon sworn: The fire occurred about eleven o'clock at night; I went promptly to it; our store was the sixth or seventh from that on fire; almost an entire block between; the fire finally extended to the store next to ours; I was clerk, salesman, general manager, etc., for plaintiffs; I opened the store, saw Daniels, clerk of the insurance agents, come in great haste; he said, "the company has a risk of $15,000 00; is Creighton about?" I asked him if he represented the agents, and he said yes, and asked what I thought about it; he then said these goods ought to be removed; I replied that

[51 Ga. 91]

I would agree to any thing he said, that I would be subject to his orders; the store was then opened, and he went in and took charge; I went in, also, at the same time; several others went in, and in a few minutes they commenced to move the goods; a good many volunteered to help move them; I helped myself, and sent Wilson and Catherwood to help; almost all the goods were removed. On receipt of a message, through an officer of police, said to be from General Johnston, one of the agents of the defendant, the doors were closed and the moving of goods stopped; some of the goods moved were put in a pile in front of the store by a tree, but there were many exceptions to the rule; I saw Mims the next day; I did not have control of the keys again for nearly two weeks; believe McNulty had the keys from the time he was employed to assist in making inventory; two or three parties were employed by Mims to fix up goods; Mims paid expenses of all this; Mims was one of the firm of J. E. Johnston & Company, defendant\'s agents. Foreign goods had a bonus in our favor of twenty-five per cent.; the defendant required the inventory to be taken to ascertain what goods were missing; inventory was of goods returned to the store; loss was ascertained by reference to the books, invoices, sales, etc.; books remained at the agents\' office as long as they wanted them; inventory took from four to five days; those of us engaged in taking inventory had possession of store while it was going on; McNulty had the keys. On the morning before the fire, books showed goods *on hand $15,493 29; after inventory taken, $10,953 62—amount of missing goods, therefore, $4,539 67; damage to goods saved, in my opinion, was twenty-five per cent., equal to $2,738 40; the damage was caused by rough handling, trampling, dirt, etc.; many pieces were unrolled; Daniels had goods removed because he thought the whole block would be burnt; goods recovered from police barracks were put back into store. I have been in the dry goods business over eight years; while taking inventory, I frequently missed goods that I knew were in store at the time of the fire.

Cross-examined: I was not present when goods were returned to the store; I did not object to the removal of goods; the pile of goods was around a tree in front of the store; I was in the store and at the door while the removal was going on; saw goods carried from the store, but don't know where they went to; a one-horse wagon load of common goods, not very valuable, that the police had captured, was recovered from the police barracks; these goods were included in the inventory taken after the fire. I made no demand for the key; the first day that McNulty was at the store with me, when we were about to leave for dinner, I took the key out of the door; he at once asked me for it, and I gave it to him; there were two keys and two locks, however; McNulty had one and I one; neither of us could get into the store without the other. I was employed by Mr. Mims in assisting in taking the inventory; he said to Creigh-ton, in my presence, "If your clerks will assist, I will pay the expense;" inventory was made at the joint expense of Creighton & Company and the defendant.

3d. T. B. Catherwood, sworn: I was present at the fire; went with my brother, who was in the employ of plaintiffs; found Dixon, Wilson and others there. A gentleman stepped up, professing to represent the defendant, and inquired for Creighton; I told him he was not there, but pointed him to Dixon, who represented the house; he asked Dixon if the goods oughtnot to be removed, who replied, "That is as you say;" this *person then further said, "Then I say move;" the moving then began, and I helped for awhile. I went into the back room, where there was no light, and it was thronged with people; I saw goods thrown out of the back window, and went into the front room and told Mr. Daniels about it, and asked him if he was in charge of the store; he said he was; I said to him, you had better then go into the back room and see what was going on there; I told him I thought it was wholesale robbery, and that the defendant would have a sweet bill to pay; Daniels rushed at once into the back room...