48 Minn. 380 | Minn. | 1892
The property for the loss of which a recovery is sought on the defendant’s policy of insurance consisted of a wholesale stock of dry goods, contained in two contiguous buildings in the city of St. Paul, one of which is distinguished as the “three-story building.” Two grounds of defense are to be considered. The first is that, as to the goods contained on the third floor of the three-story building, the plaintiff did not comply with the express terms of the policy, which required the insured, in case of loss, to “make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon.” The second ground o^ defense is that the plaintiff did not comply with another provision of the policy, to the effect that, in case of disagreement of the parties as to the amount of the loss, the same should be ascertained by appraisers, one of whom should be selected by each of the contracting parties. The two appraisers so selected were to choose an umpire. In fact no such particular inventory as is specified in the policy was made of the goods on the third floor of the three-story building; but the plaintiff’s position in the ease is that it complied with this requirement of the policy as far as could be done, and that the extent and nature of the damage done by the fire in this apartment was such that an inventory of the goods could not be made. The court submitted it to the jury to determine whether the fact was in accordance with the contention of the plaintiff, instructing the jury, in effect, that the failure to make such an inventory would not preclude a recovery if, by the exercise of all reasonable effort and diligence, the plaintiff could not have complied with the express requirement of the policy. This instruction was not excepted to, and may be ae
In considering the second ground of defense above referred to, we shall assume, in accordance with the ruling at the trial, that the plaintiff would have no right to maintain this action if it had refused or neglected to comply with the provisions of the policy with respect to an appraisal or arbitration. In fact there was no such appraisal, but it is claimed on the part of the plaintiff that this was not by reason of its fault or neglect, but is to be attributed to the misconduct and bad faith of the defendant, and that the latter is hence precluded from putting forward as a defense the fact that there was no appraisal. There was evidence reasonably supporting this position of the plaintiff, and from which the jury might conclude that, after there came to be a disagreement as to the amount of the loss, and after the plaintiff demanded that an appraisal be speedily made, the defendant unreasonably delayed such action on its part as was necessary to that end, for the purpose of postponing an adjustment, and subjecting the plaintiff to such embarrassment and loss from the interruption of its business during the process of adjustment as to prompt it to a settlement of its claim upon terms which would not otherwise be accepted. And, further, there was evidence reasonably tending to show that after each of the parties had selected an appraiser, and after such appraisers had met to choose an umpire, the
■ The plaintiff had made an offer to compromise its claim, and to accept a specified sum if the offer should be accepted within a specified time; but the evidence tended to show that during that time, and while the proposal was still pending, it also urged the defendant to action in the matter of the arbitration, which, as it seems, might be expected to require for its completion a longer time than had been allowed for the acceptance of the offer to compromise. The pendency of negotiations' for a compromise did not excuse the defendant from compliance with the plaintiff’s demand, previously made, but still insisted upon, that the arbitration proceedings go forward. The plaintiff had the right to require the observance of the contract provision for
What has been already said is in part applicable to errors assigned in respect to qualifications of several instructions requested by the defendant. These requested instructions, which were quite voluminous, were to the effect that the plaintiff could not maintain the action if certain specified conditions should be found by the jury, among
Order affirmed.
(Opinion published 51 N. W. Rep. 123.)