Peterson v. Hartford Fire Insurance , 99 Neb. 444 ( 1916 )

Morrissey, C. J.

This is an action to recover on a settlement of a liability created by a policy of fire insurance. From a verdict and judgment in favor of plaintiff, defendant appeals. This is the second time the case has been in this court. The former opinion is found in 93 Neb. 448; the opinion being controlled by its companion case, Springfield Fire & Marine Ins. Co. v. Peterson, 93 Neb. 446. The facts are sufficiently stated in the two cases mentioned and will not be repeated here. On the retrial of the case, defendant filed an amended answer alleging that the agreement of compromise and settlement was fraudulently procured, and the court instructed the jury to the effect that the question to be determined was: Did the defendant enter into the adjustment and compromise settlement by reason of any fraudulent representation or deception practiced by plaintiff? No complaint is made of this instruction, and we will assume that this issue was practically the only one on which the jury passed. Defendant contends that the adjustment and settlement on which recovery is had was so clearly shown to have been obtained by fraud that there is no room for an honest difference of opinion, and therefore the verdict and judgment are not sustained by sufficient evidence. This is the only point urged in the brief, and will be the only question considered.

There is now no contention that there was any fraud in procuring the insurance, or that the property was over-insured. Neither is there any suggestion that there is any suspicious circumstance connected with the fire. During the fire the linotype machine was drenched with water and became covered with debris. The roof was burned off the building, and plaster and cinders literally covered the machine. The timbers on which the machine rested were burned to such an extent that plaintiff and defendant’s adjuster thought it unsafe to go about the machine very much for fear the timbers might give way, and they, together with the machine, be precipitated into the basement. The adjuster did not regard himself as competent to pass on the damage, and between them it was arranged to have an experienced linotype mam from Omaha look the property over. At the suggestion of plaintiff, a man named Bush, who had helped to install the machine, was procured, and he, together with plaintiff, looked the machine over; but, for the same reasons that deterred the adjuster and plaintiff from making a* careful examination, he refrained from removing the debris from the machine, but took a long distance view of it, and then made a report in writing stating: “Upon inspection I found the following parts necessary to equip the machine so as to put it in running order.” He then gave a list of parts by taking a catalogue of parts, listing them, with the prices given in the catalogue. This report showed the total amount required to be approximately $1,900. Bush read from this catalogue while Peterson did the writing, and together this statement was prepared. The claim is now made that this report of loss was worked out by Pe+erson and Bush for the purpose of defrauding defendant; that it is untrue; that defendant was deceived thereby; and therefore a recovery cannot be had thereon.

Plaintiff■ testified that, after this report had been made to the adjuster, he had a conversation with the adjuster, that they went over the matter together, and the adjuster said that the statement made by Bush was not a state-meat of the loss, and did not purport to he the loss at all, but that it was a. statement of what it would cost to “rebuild the machine,” while defendant was liable only for the actual loss, and he made an offer to pay the amount on which settlement was finally made. There is a letter in the record from the adjuster which fully corroborates the testimony of the plaintiff. It says: “We are unable to understand from what Mr. Bush figured in malting his estimate, as to our minds it is entirely out of proportion with the actual damage sustained by fire, and we must say to you frankly that we cannot consider this estimate as a basis for settlement.” The correspondence discloses that after Bush made his report defendant had arranged for an expert from the factory making the linotype machine to inspect the loss.- And this inspection would have been made had not plaintiff accepted defendant’s offer of settlement. It is quite evident that neither plaintiff nor defendant’s adjuster removed the debris from the machine or made as careful an examination as they ought to have made before undertaking to adjust the loss. No doubt, each honestly believed that the machine was greatly damaged. It subsequently developed that the debris which fell on the machine had protected it from the fire and that it had suffered very little damage.

Defendant, in its brief, lays much stress upon the language of the report made by Bush and the fact that it was prepared in the office of plaintiff and to some extent, at least., under his direction. But the subsequent conduct of defendant’s adjuster and his correspondence fairly show that he did not rely upon this statement, and we think it may be reasonably inferred that, having seen the property, he relied on his own judgment and thought at the time he was making an advantageous settlement. Here we have two parties dealing at arm’s length, each seeking to make the best settlement attainable. They do make a settlement. Afterwards it is discovered that one has gained an advantage thereby, but for this reason alone we cannot set their agreement aside. If, when the debris was removed and the machine examined, it were found that the damage exceeded the amount of the settlement, it is not unlikely defendant would have taken advantage of the agreement made and would have enforced it. The verdict of the jury has ample support in the evidence, and the judgment is

Affirmed.

Sedgwick, J., not sitting.