82 Cal. 263 | Cal. | 1889
The order denying defendant’s motion for a new trial in this case was reversed by a decision of Department One, on the sole ground that the finding as to the amount of respondent’s loss was contrary to the evidence. A rehearing having been granted, we are satisfied, after reargument and re-examination of the record, that we misconstrued the testimony of the witness Pam, and were led to an erroneous conclusion as to the effect of it by failing to add to the invoice price of the goods purchased the whole amount of the freight,— $993. This was necessary in order to obtain a proper basis for the computation as to the value of the goods destroyed. Making this correction, the computation shows that the goods destroyed were worth a little in excess of four thousand dollars, and so there is evidence sufficient to support the verdict.
As to other points involved in the appeal, we adopt the opinion of the Department.
Judgment and order are affirmed.
McFarland, J., Paterson, J., Sharpstein, J., Thornton, J., Works, J., and Fox, J., concurred.
The following is the decision of Department One, above referred to, rendered on the 31st of May, 1889 :—•
This is an action on a fire insurance policy for two thousand dollars issued by the appellant
The plaintiff had judgment in the superior court for the whole amount of the policy, with interest and costs.
Defendant appeals from the judgment, and from an order denying it a new trial.
As the order appealed from must be reversed on the grounds hereinafter stated, it will be necessary, in view of the further proceedings in the superior court, to pass upon several of the points urged in support of the appeal.
These depend mainly upon the following clauses of the policy in suit:—
“The loss to be paid sixty days after due notice and proofs of the same shall have been made by the assured and received at the office of the company in accordance with the terms and provisions of this policy.”
“In case of differences touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial appraisers, whose award in writing shall be binding on the parties as to the amount of such loss or damage.”
Shortly after the fire, Pam, the insured, gave the defendant notice of the fire, and within a reasonable time furnished the requisite proofs of loss in due form. In these formal proofs he put the total amount of his loss
The defendant did not within sixty days after proof of loss make any demand for arbitration as to the amount of loss or damage, but a short time after the expiration of that period, and before the commencement of this action, did make such demand in writing.
In this state of the case, the superior judge, in ruling upon defendant's motion for a nonsuit, and in instructing the jury, decided two propositions, which constitute the principal grounds of controversy between the parties. He held, in effect: 1. That this action is maintainable, notwithstanding it was commenced after defendant’s demand for arbitration, and without compliance with such demand; 2. That the plaintiff could be allowed to prove a loss to the extent of four thousand dollars, and thereupon recover the full amount of the policy, notwithstanding his statement in his formal proofs that his total loss was but two thousand dollars.
The appellant contends that both these propositions are erroneous, and as they are necessarily involved in any future trial of the case, we will briefly consider them.
We think it clear that if the formal proofs had stated
The necessity of an appraisement was not absolute upon any construction of the policy. It was not a condition precedent to the right of action, unless demanded. The most that can be said is, that either party could demand arbitration within a reasonable time; but if not so demanded, it was waived. It is not necessary to decide what would, under the circumstances of this case, have been a reasonable time within which to make the demand, if the amount of the loss had been correctly stated in the proofs. It is- sufficient to say that a demand made for the first time after the expiration of the .full period of sixty days, or in other words, after the loss had become payable and a right of action had accrued, would have been too late.
And we think it equally clear that if the plaintiff in this action had confined his demand to an amount justly proportioned to the statement of his total loss, his refusal to arbitrate would have been no ground for denying his right to recover, even admitting defendant’s right to an arbitration if seasonably demanded.
But the case in fact is like neither of the cases supposed. The plaintiff did not state a loss equal to that which he has been allowed to prove, and he does not confine his demand to one half of the amount of the loss stated. The question, therefore, which the case presents (assuming, as we do, for the present, that the defendant had a right under the policy to demand arbitration as to the amount of the loss, provided he made such demand within a reasonable time after receiving
It is obvious that if the insured, under a policy containing a stipulation to the effect supposed, should, in his proofs, state a total loss clearly within the actual amount, the insurer would not be likely to demand arbitration, and if his failure to make the demand were held to be a waiver of the right, and it should at the same time be held that the insured could, in an action on the policy, prove any amount of loss, however large, the result would be to deprive the insurer of all benefit of the stipulation. This, of course, could not be done indirectly, any more than it- could be done directly, and it follows that on the assumption of defendant's right to an arbitration, — which its counsel claim, and the judge of the superior court seems to have conceded, —it was error to hold that the plaintiff could prove a loss of more than two thousand dollars, or recover from defendant more than one thousand dollars. We do not wish to be understood that in so holding we are sustaining the contention of appellant that the insured is estopped from proving the actual amount of loss by the mere fact that he has understated it in his proofs. We put our decision upon the ground that in the case supposed the insurer has acted upon the statement, that he has relied upon it, and refrained from exercising a right which otherwise he would have exercised, and that he would be injured by allowing the insured to prove a greater loss than he has stated.
But the respondent contends that the defendant, under a proper construction of the policy, never had any right to demand arbitration as to the amount of loss.
It is in view of this contention that our observations on the points thus far discussed have been qualified by
What is said of the case last cited is equally true of the case of Old Saucelito L. & D. D. Co. v. Com. Union Assurance Co., 66 Cal. 253. And neither case can be considered authority for holding the provision of the policy under consideration to be effective. We hold, on the contrary, that it is of no force. We think that if an insurance company desires to secure to itself the right to the liquidation of damages through the intervention of arbitrators or appraisers, it must definitely provide at least for the number of arbitrators, and the mode of
From this view it follows of course that the plaintiff here can maintain his action, notwithstanding his refusal to arbitrate; and that, since the defendant has lost no right or advantage by plaintiff’s understatement of the amount of his loss, if, in fact, it was understated, there is no reason why he should be denied the right to prove the full amount of the actual loss. Therefore, the rulings of the superior judge on these points, though put upon a ground that we consider untenable, were not in fact erroneous or injurious to the appellant.
But we think that the contention of the appellant, that the evidence was insufficient to prove a loss of four thousand dollars, is correct. We have carefully examined this evidence, and we think it shows, without any substantial conflict, a loss of less .than four thousand dollars.
The plaintiff’s principal witness on this point was his assignor, Pam, whose method of arriving at the value of the stock of goods on hand at the time of the fire was to deduct from the total amount of his sales ,up to the date of the fire the assumed percentage of his profits, and then to deduct the remainder so ascertained from the invoice price of all the goods he had purchased. He had carried on business during the latter part of 1883, and had taken up stock and made an inventory Janu’ary 1,1884. The figures show exactly what was the amount of his sales and what of his profits during 1883, and that his gross profits during that year were less than 39 per cent of the invoice price of his goods. He testifies that his gross profits were larger in 1883 than they were in 1884, but when he comes to figure out the value of the stock of goods at the time of the fire, according to the method stated, he has to assume a profit of 60 per cent in order to bring out his estimate of $5,810. Taking the percentage of gross profits which he made the previous year, and which he testifies was larger than
Another of plaintiff’s witnesses (Verdugo) put the value of Pam’s stock at three thousand dollars.
Pam’s clerk, Gotthelf, says he usually had a stock worth' five thousand dollars; and Steinfeld says that three weeks before the fire it was worth five thousand dollars. But it clearly appears from the books that for several weeks before the fire large amounts of goods were being sold and scarcely anything purchased.
Gotthelf does say in his deposition that he places the value of the goods destroyed at five thousand dollars, but this particular answer was not responsive to the interrogatory, and defendant’s motion to suppress it ought to have been sustained.
There was no other testimony to sustain a finding of four thousand dollars loss, and the witnesses for the defendant—apparently fair, capable judges, and with good opportunities and sufficient motives to observe the condition and value of the stock—put it at a very much lower figure. In short, the verdict is in this particular without any substantial evidence to support it, and is evidently the result of prejudice or mistake.
For this reason, the defendant was entitled to a new trial, and the order denying it must be reversed.
There is nothing in the remaining assignments of error that calls for particular notice.
The order overruling appellant’s motion for a new trial is reversed, and the cause remanded.
McFarland, J., and Paterson, J., concurred.