Jorgenson v. Girard Fire Marine Insurance Co. , 229 Minn. 48 ( 1949 )

In their petition for rehearing, counsel for respondent say that this court erred when it —

"founded its decision on the case of Wheeler vs. Globe R. F. Insurance Company, 125 S.C. [320], 325, 118 S.E. 609 and other cases cited in the Court's Opinion, all of which rely upon the Wheeler case as the foundation of their authority and that the Court did not mention, and apparently overlooked, the case of Johnson vs. Glen[s] Falls Insurance Company (South Carolina) [131 S.C. 253], 127 S.E. 14, 40 A.L.R. 993, from the same state which overruled the Wheeler Case and removed the Wheeler case as a controlling decision, * * *."

In their original brief, counsel argued that the supreme court of South Carolina "repudiated" the rule adopted in the Wheeler case. While writing its initial opinion, this court did not consider that that argument merited consideration, since an examination of the Johnson case demonstrated that counsel's argument was untenable. The Wheeler case is nowhere cited in the majority opinion in the Johnson case. The concurring opinion of Mr. Acting Associate Justice Lumpkin expressly states (Johnson v. Glens Falls Ins. Co. 131 S.C. 258,127 S.E. 16):

"* * * After a careful study of the facts here presented as applying to defendant's motion for directed verdict, I am convinced that an entirely different issue arose in this case than in the Wheeler Case,"

distinguishing the latter upon its facts. The question of negligence in loading, which was held not to be a defense in the Wheeler case, since no policy provision provided such a defense, was nowhere mentioned as an issue in the Johnson case. The sole issue considered in the majority opinion in the Johnson case was the question of construction of the terms of the policy — terms different from those in the instant case. At most, the Wheeler case was distinguished on its facts by the Johnson case as to the construction of differing policy words. The negligence point was left utterly untouched by the Johnson decision.

Counsel's research failed to uncover the cases of Liverpool L. G. Ins. Co. Ltd. v. Jones, 207 Ark. 237,180 S.W.2d 519; Continental Ins. Co. v. Griffin (Tex.Civ.App.)218 S.W.2d 350; or Freiberger v. Globe Ind. Co. 205 A.D. 116,199 N.Y. S. 310, cited in our principal opinion. They do not now contend that these are inapplicable authority. They have rested their petition for rehearing on the effect of the Johnson case. They evidently failed to observe that the Liverpool L. G. Ins. Co. decision, in common with other cases cited in the original opinion, refused to follow the theory of the Johnson case. The Arkansas court followed its previous decision in Importers' Exporters' Ins. Co. v. Jones, 166 Ark. 370, 266 S.W. 286, which had relied heavily upon the Wheeler case, although the Johnson case was decided shortly after the Importers' Exporters' Ins. Co. case. Not only has the Johnson opinion been ignored in other jurisdictions, but it is also against the weight of authority as the cases now stand.

This court has not "overlooked" the demountable construction of the cutter bar. Our opinion describes the cutter bar and states (229 Minn. 49, 38 N.W. [2d] 210):

"* * * It would not have been possible to load the combine so that it did not project beyond the edge of the truck without removing the cutter bar."

Furthermore, the whole opinion treats the insurable risk as the entire machine described in the policy by make, model, serial number, and "Self Propelled Combine-14Ft." As stated in the opinion, that "description has an important bearing upon the mutual intent of the parties as to the risks to be assumed." This disposes also of respondent's argument that the rule of the case of Bucks County Const. Co. Inc. v. Alliance Ins. Co.162 Pa. Super. 153, 56 A.2d 338, has no application.

Petition for rehearing denied.

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