Baumgarth v. Firemen's Fund Insurance

152 Mich. 479 | Mich. | 1908

Grant, C. J.

(after stating the facts). It is the established rule in this State that no right of action on the part of an insured exists until an appraisal provided for in the policy has been made. Chippewa Lumber Co. v. Insurance Co., 80 Mich. 116; Morley v. Insurance Co., 85 Mich. 212; Kersey v. Insurance Co., 135 Mich. 10.

The parties to this suit recognized this rule and each selected an appraiser in accordance with its terms, — Mr. Dickson for the plaintiffs, and Mr. Thomas for the defendant. They met. Each proposed several names, none, of which was satisfactory to the other. They finally agreed upon Mr. Weaver. He agreed to return and act if his physician would permit. Neither was obliged to take any further action until he had satisfactory assurance that Mr. Weaver would not act. Mr. Dickson assumed to act upon information received from Mr. Weaver’s son. He was not justified in relying upon this and could not place Mr. Thomas or the defendant in the wrong until Mr. Thomas knew of Mr. Weaver’s refusal. Dickson did not rely upon the assurance received from Weaver’s son, for he telegraphed to Mr. Weaver at Detroit, and received not a refusal but a telegram saying:

“ Unable to say when can go home.”

Under Dickson’s own testimony Mr. Thomas, in the conversation of the 3d of October, informed him that he was satisfied Mr. Weaver would act. Thomas testified that about 4 o’clock on the afternoon of the 3d, Dickson informed him that he was going to take an ex parte appraisal. I do not find this statement contradicted by Mr. Dickson.

No one knew of Weaver’s refusal until the letter received by his son sometime bn the 4th of October. Mr. Dickson had no information upon which the law required him to act until the 4th of October. At that time, Mr. Dickson, acting under the instruction of the plaintiffs and their attorney, had commenced an ex parte appraisal, at nine o’clock on the morning of the 4th. As soon as Mr. Thomas knew this he wrote the letter above quoted offering to continue negotiations. To this letter plaintiffs paid no attention. Mr. Dickson claims that he acted in good faith in proposing persons for umpire, though he mentioned some persons who were relatives of the plaintiffs and another who was in the employ of a relative. Mr. Dickson objected to the persons proposed by Thomas, none of whom it appears was in any manner connected with the defendant or its business. The refusal on the part of Thomas to approve the persons named by Mr.. Dickson is not of itself any evidence of bad faith under the reasons given by him. The plaintiffs through Dickson were in the wrong in refusing to make further attempts to select an umpire, after they had learned that Mr. Weaver could not act. There is no occasion to enter into a discussion of the charge of bad faith on the part of Mr. Dickson. I can find no evidence of bad faith on' the part of Mr. Thomas. If it were the fact that both arbitrators acted unreasonably and had concluded that they could not agree, there being no bad faith on the part of the defendant, the plaintiffs had not fully performed their legal duty under their contract. It was their duty to continue further negotiations to secure an appraisal.

In Vernon Ins. Co. v. Maitlen, 158 Ind. 393, the facts were very similar to those in this case. Each chose his arbitrator. One insisted that the umpire should be a resident of the immediate vicinity of the place where the property was situated, the other that he should be taken from some point not in the immediate vicinity. The court say:

“ The appraisers seem to have been equally honest, and equally unreasonable in their views concerning the proper qualifications of an umpire. Those views proved to be irreconcilable. It cannot be said that one of the parties, more than the other was responsible for the failure to agree upon an umpire. We cannot attribute bad faith or perversity to either. We must ascribe their failure to agree, rather, to the peculiarities of the two' appraisers. Oth'er appraisers, if chosen, may easily decide the amount of the loss, or, in case of a difference of opinion on this point, may promptly select an umpire.” .

It was held that the condition of arbitration was still binding upon the parties, that they should have appointed new arbitrators, and that the insured could not maintain a suit. Under similar circumstances the supreme court of Iowa made the same ruling. Westenhaver v. Insurance Co., 113 Iowa, 726; Altman v. Altman, 5 Daly (N. Y.), 436; Davenport v. Insurance Co., 10 Daly (N. Y.), 535.

It follows that plaintiffs Were not in position to maintain this suit, and the trial court should have so instructed the jury.

There was an incumbrance upon a portion of this stock of goods claimed to constitute a chattel mortgage and to vitiate the policy. Under the above disposal of the case, it is unnecessary to determine that question.

Judgment reversed, and new trial ordered.

Hooker, Moore Carpenter, and McAlvay, JJ., concurred. .