215 N.W. 65 | Minn. | 1927
Lead Opinion
In 1924 plaintiff was conducting a wholesale jewelry business in St. Paul. It suffered a fire loss on March 23. Defendants are two of the insurers, the action against one of the others having been here already. Kaufman Jewelry Co. v. Firemen's Ins. Co.
The preliminary and controlling issue was whether the goods disappeared during the fire or so soon afterwards and under such circumstances as to result in a fire loss under the policies, or whether, on the other hand, the loss was so far independent of the fire as not to have been one resulting therefrom and therefore not a risk insured against. The award, unexplained, indicates a consideration of that question and a decision of it in favor of plaintiff. In fact the award is explainable on no other hypothesis.
1. The first claim for appellant is that the answers, in their attack upon the award, are so general in their allegations as not to present any issue within the rule of McQuaid M.H. Co. v. Home Ins. Co.
2. The appraiser and umpire who made the award testified in support of it for plaintiff. The umpire said frankly that he did not consider at all the fact issue whether the $20,000 worth of jewelry was lost as a result of the fire or simply disappeared afterwards and because of an unrelated cause. No other construction can be put upon his testimony, a portion of which is as follows:
"Q. What did you consider had happened to those goods, that $20,000? * * *
"A. I did not consider what had happened to it.
"Q. You didn't consider that at all?
"A. No. * * * I didn't understand that the appraisers were to determine what may have happened."
It does not appear clearly whether the appraiser for plaintiff did or did not consider and decide the vital issue. So as to him we give the award the benefit of sustaining presumption. But, only the appraiser and the umpire having joined therein, the award falls as a matter of law for the declared omission of the umpire even to consider the issue, only the decision of which for plaintiff could support any allowance for the $20,000 worth of jewelry which was lost and not burned.
Judges have not yet agreed upon any general rule for the avoidance of awards. They concur only as to some of the elements of the problem. They agree, for example, that awards cannot be lightly set aside and that they are attended with every presumption of validity. McQuaid M.H. Co. v. Home Ins. Co.
The actions being on the award as such, it follows not only that the verdict of the jury was right, but also that the motion of defendants for a directed verdict should have been granted. There is therefore no occasion to consider alleged errors in the charge or the admission of evidence. As to the claim that the record of the proceedings before the arbitrators was inadmissible for any purpose, see Larson v. Nygaard,
Orders affirmed.
Addendum
While plaintiff's petition for rehearing must be and is denied, it has been the occasion for a careful reconsideration of the case by the court in view of the "practical difficulty" in which appellant is placed. There is a general verdict for defendants. The effect, without more, will be to bar plaintiff of any recovery even for the *319 defendants' share of an admitted loss of $15,000. It is a difficulty for plaintiff and a serious one, but not of our making.
Plaintiff declared very definitely for recovery on the award. There was neither prayer nor proof for recovery, independently of the award, for loss actually suffered. No special questions having been submitted to the jury, it is impossible to say whether the general verdict rests upon invalidation of the award, or a finding that plaintiff had attempted to defraud defendants, or upon both grounds.
The one point decided here is that the award is invalid as a matter of law. Upon that point our reconsideration of the evidence, particularly that referred to in the petition for rehearing, but confirms the conclusion that the controlling issue was not considered at all by the umpire. Plainly, therefore, the award was not responsive to the issues submitted. That question cannot be reopened.
The record leaves in some doubt the intention with which the issues were submitted below. The jury was told that "it is only in the event that the award is set aside on the grounds charged in the answers that the plaintiff cannot recover in this case;" and again, with some apparent conflict, "If you should find by the greater weight of the evidence, `that the plaintiff attempted to defraud these defendants,' your verdict would be for the defendant." So the jury may have felt that the award itself was proper but the plaintiff could not recover at all because of fraud in the sworn statement of loss; or they might have concluded that the plaintiff was guiltless of fraud but that notwithstanding the award could not stand. There was no effort by plaintiff to prove loss other than by the award and none to protect its right, if any, to recover for the admitted loss in the event that the award should be set aside but plaintiff found innocent of fraud. In that situation and with this further comment, we consider it proper to say our decision of the appeal is without prejudice to the rights of either party in the event that plaintiff renews its motion for a new trial (with or without amendment of pleadings) of the issues other than that of the validity of the award.
Petition for rehearing denied. *320