182 P. 361 | Utah | 1919
“In consideration of the reduced rate at which and the form under which this policy is written, it is expressly stipulated and made a condition of the contract that in the event of loss this company shall he liable for no greater proportion thereof than the amount hereby insured bears to ninety per cent, of the actual cash value of the property described herein at the time when such loss shall happen, nor for more than the proportion which this policy bears to the total insurance thereon: Provided, however, that if the aggregate claim for any loss shall not exceed .two per cent, of the insurance covering on the specific item of property on which claim is made, no special inventory or appraisement of the undamaged property shall be required.”
Eacb policy also contained tbe following clause:
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the policy be not truly stated herein, or in case of any fraud or false swearing by the insu-red touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
It was ia substance further alleged in each of tbe several complaints that a fire occurred in tbe “Atlas Block,” Salt Lake City, on tbe night of October 25, 1917, wherein the plaintiff’s stock of merchandise and fixtures were damaged and destroyed to tbe extent of $17,500; that plaintiff had on ' band at tbe time of tbe fire merchandise of tbe fair cash value of $18,000 and fixtures' of tbe value of $2,000, all of which
The several complaints were verified by the same person and subscribed by the same attorneys.
The appearance of the respective defendants in the several causes against them were also the same, and each defendant in its answer to the complaint admitted the amount of the insurance, denied the extent of plaintiff’s loss, and as an affirmative defense alleged fraud, misrepresentation, and concealment in making sworn proof in writing of the loss and damage sustained by the plaintiff in violation of the express terms and provisions of the policy, and that by reason thereof the policy had become void and was of no force or effect.
After the issues had been thus joined in the several suits brought by the plaintiff against the defendants, the cases were set for trial one to follow the other. On September 25, 1918, the case against the Sterling Fire Insurance Company was first called for trial, and, before proceeding therewith, counsel for the plaintiff moved that the several cases be consolidated for the purposes of trial. The plaintiff’s motion, over the objections of the defendants, was sustained and the order made that the several cases be consolidated for trial. A trial by jury was then proceeded with, the trial court according to each of the defendants the same rights and privileges it would have been entitled to had its case been tried separately. Upon the conclusion of the testimony the cases thus consolidated were submitted to the jury to make special findings as well as for the purpose of returning a general verdict.
The findings of the jury upon the special interrogatories propounded were:
"Question No. 1. Did the plaintiff, through its agent, M. F. Kady, in the proofs of loss introduced in evidence herein, willfully and knowingly and for the purpose of defrauding defendant make and swear to any false statements as to the extent, amount, and value of the property destroyed by said fire and covered by the policies of insurance in evidence herein? Answer: No.
*399 “Question No. 2. Did the plaintiff, through its agent, M. F. Kady, in the examination under oath pursuant to the terms of the policy in evidence herein, then and there willfully and knowingly and for the purpose of defrauding defendant make and swear to any false statements as to the amount, quantity, and value of the property destroyed by said fire and covered by the policies introduced in evidence herein? Answer: No.”
A general verdict was returned in each, case awarding the plaintiff the amount of the policy involved; the only difference in the verdicts rendered in the several cases being the difference in amounts between the defendants’ respective policies. In the aggregate the several verdicts in plaintiff’s favor amounted to $15,500 for loss upon merchandise and $100 for the damages to fixtures. Judgment was entered against each of the defendants according to the amount of the verdict returned upon its separate policy. Motion for a new trial was made and denied.
The defendants assign as error and complain of the consolidation of the five eases for the purposes of trial; errors in the admission and exclusion of certain testimony; insufficiency of the evidence to justify the verdicts; and the giving of and the refusal to give certain instructions to the jury.
Was the consolidation of the cases for trial prejudicial. error ?
Our statute bearing on the subject of consolidation of actions for trial is copied from California. Cal. Code Civ. Proc. section 1048. It is Comp. Laws 1917, section 7219, and reads:
“Whenever two or more actions are pending at one time between the same parties and in the same court upon causes "of action which might have been joined, the court may order the actions to be consolidated.”
It is apparent that no authority was conferred upon the trial court to consolidate the cases under the foregoing statute. The actions were not pending “between the
The federal cases above referred to were ruled under authority of U. S. R. S. section 921, which provides:
“When causes of a like nature or relative to the same question are pending before a court of the United States * * * the court1 may * * * consolidate said causes when it appears reasonable to do so.”
As to the Massachusetts cases, we need but quote from the opinion in Lumiansky v. Tessier, supra:
“There is no statute covering the general subject of consolidation of actions in this commonwealth, and a practice has grown up adapted to the accomplishment of justice according to varying circumstances.”
We quote from the opinion in Peterson v. Dillon, supra, with reference to the Washington procedure:
*401 “There is no statute in this state relating generally to the consolidation. * * * There are special provisions for certain kinds of actions.”
.Quoting from the Wisconsin case:
“It may he added that our statute on the subject contains no limitation which interferes with the power of the court to make the consolidation. Rev. St. section 2792. The statute reads thus: ‘When two or more actions are pending in the same court which might have been jo.ined, the court, or a judge, on motion, shall, if no sufficient cause be shown to the contrary, consolidate them into one by order.’ Every condition of the statute is here present.”
The Arizona case was ruled upon in the absence of any express statute authorizing the consolidation of cases.
This court has generally held that, where the provisions of a statute of a sister state are adopted as our own, the adoption is made with construction placed upon it by
In 1 Cyc. 1125, section 320, the rule is stated thus:
“One of tbe conditions authorizing, and essential in order to authorize, a consolidation, is that the different actions shall be between the same parties, and this rule is ordinarily expressly recognized in the statutes relating to consolidation.” (Italics ours.)
Comp. Laws 1917 section 7219, having prescribed the rule of procedure in consolidation of cases, we think the court had no power to consolidate the several actions against the defendants for the purpose of trial unless the statute was complied with. This court held in the case of Railway v. Investment Co., 35 Utah, 528, 101 Pac. 586, that section 5839, declaring, “The Revised Statutes established the law of
“The court may determine any controversy between parties before*403 it, when it can he done without prejudice to the rights of others, or hy saying their rights; hut when a complete determination of the controversy cannot he had without the presence of other parties, the court must then order them to be brought in.” (Italics ours.)
While we do not want to be understood as bolding that the court had the right to consolidate the several cases for trial in view of section 7219, supra, we do think the trial court had the power under the provisions of our Code of Civil Procedure last above cited to conduct the proceedings as they were conducted in the case at bar; that the results were right, and complete justice to the parties was not otherwise obtainable. The trial court in effect treated the answers in the several actions as joined as one answer. The liability of'one defendant depended upon the liability of every other defendant under the issues as found and required precisely the same testimony as between the plaintiff and each defendant for a proper determination of the questions involved.
Let it be conceded that the methods adopted by the trial court at the trial were technically irregular; counsel for defendants have pointed out no prejudicial error in
“Tbe court must in every stage of an action disregard any error or defect in tbe pleadings or proceedings, wbicb does, not affect tbe substantial rights of tbe parties, and no judgment shall be reversed or affected by * * * such error or defect.”
See Barton Bros. v. G. J. G. M. & M. Inst., 10 Utah, 346, 37 Pac. 576; Doyle v. West Temple Terrace Co., 43 Utah, 277, 135 Pac. 103; Mills v. Gray, 50 Utah, 224, 167 Pac. 358.
It is contended by the defendants that the trial court erred in admitting the testimony over their objection of one Kady, the manager of plaintiff company, to the effect
During the course of the trial the defendants proffered cer-, tain testimony tending to show that the representative of an insurance company not made a party to the action inspected the plaintiff’s merchandise some time before the fire, and upon doing so had canceled the policy issued by his company. In excluding the testimony proffered through this witness the trial court did so on the ground that it was irrelevant
It is further contended by defendants that the evidence is insufficient to justify the verdicts, mainly on the ground that the verdicts are based on testimony which is contrary to the undisputed physical facts. The testimony in brief shows that in December, 1916, the plaintiff took an inventory of stock, and that the inventory then taken showed stock on hand amounting to $15,046.23; that subsequently it added to its
The defendants insist, however, that the verdicts are contrary to the undisputed physical facts and to all natural and physical laws, and therefore the verdicts ought not to be permitted to stand. The plaintiff, as pointed out, produced its inventory values of stock on hand in December, 1916, to which it added its purchases up to the time of the fire, making deductions for what was taken out of the stock up to the time of the fire, thus making a showing that the value of stock damaged and consumed by fire amounted to more than the amount of the policies written by the several defendants. In connection with this showing made by the plaintiff there must be taken into consideration’the unrefuted testimony of a number of disinterested witnesses who • shortly before the fire viewed the stock and who testified that in their opinion the stock in the room where the fire occurred was worth approximately $18,000. As against this testimony the defendants
"We find no prejudicial error either in the refusal to give or in the giving of instructions to the jury.
We think the defendants’ motion for a new trial was properly overruled by the trial court, and that the judgments rendered against them should be affirmed. It is so ordered. Costs to plaintiff.