83 Md. 524 | Md. | 1896
delivered the opinion of the Court.
A former appeal in this case is reported in 80 Maryland, 214. The suit was brought by the appellees on a policy oí insurance to recover a loss by fire to the' goods insured.
The policy provides for determining the amount of loss as follows : "Said ascertainment or estimate shall be made by the insured and this company, and if they 'differ, then by appraisers, as hereinafter provided ; and the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company.” * * “In the event of disagreement as to amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree shall submit their differences
One of the cardinal questions in the case depends on the effect and legal consequences of these clauses. The fire occurred July the twenty-third, 1893. An agreement for the appraisement of the loss was signed by Traub & Brother on one hand and the Insurance Company on the other, on the fourth day of August of the same year, and Rosenfeld and Biernbacher were appointed appraisers. They proceeded to appraise the loss, and appointed Baetjer umpire. There is testimony that the appraisement was begun before the umpire was appointed; and there is testimony on the other hand that the umpire was appointed before any entry had been made in a book by the appraisers. There is evidence that Rosenfeld withdrew after some progress had been made in the appraisement and refused to have anything more to do with it, and that the work was then completed and an award made by the other appraiser and the umpire without his concurrence. This award is not in accordance with the stipulations of the policy. It was required that the appraisers acting together should estimate the loss, and when they failed to agree their differences were to be submitted to the umpire. It was necessary that there should be joint action by both of the appraisers, conference together, and a result reached, if possible, by their combined action. The umpire had no authority to act, except when they differed in their estimates. As it occurred, Rosenfeld’sjudgment was not exercised on a good many questions involved in the appraisement; and the other appraiser and the umpire assumed that they had the authority to make the decision without him, and they together made up the award. Independently of the distinct requirement of the policy the law would require combined action by the appraisers who were selected by the parties. They occupied the position of arbitrators. And with respect to the duties of arbitrators the law is fully settled. In the first volume of American and English Encyclopædia of Law, p. 683, a great number
There is something unexplained about Rosenfeld’s desertion of the arbitration after he had commenced it. Evidence was given by Reinhardt as follows: “ The witness testified on cross-examination that he told Traub that he would have to go into arbitration; he was acting for the plaintiffs. It was after the offer of $816 had been made and refused that arbitration was spoken of. I understood from Mr. Hewes that he was acting for all four companies. I told Mr. Traub that they would have to enter into an agreement of arbitration, and he said all light; he asked me attend to it. I told him I would.” Baetjer, the umpire, testified that on the second day of the appraisement he received from Rosenfeld the following telegram:
Baltimore, Md., Aug. ioth, 1893.
To. J. G. Baetjer, c-o. J. Traub & Bro.,
Union Bt'idge, Md.
The ascertainment of the amount of the loss by appraisement was a condition precedent to the payment of the sum of money for which the Insurance Company was liable. And it was the duty of each of the parties to the contract of insurance to select an appraiser. If the insured should refuse to perform this duty, he would be disabled to recover in a suit on the policy. And, of course, it is necessarily implied that the appointment of an appraiser should be made in good faith, with the purpose and intention, so far as it depended on the parties, that the appraisement should be duly made. If the insured should interfere to prevent it, or should in any way cause it to be defeated, the consequences would be the same as if he had refused to make an appointment. The withdrawal of the appraiser appointed by the insured without any apparent good reason, and with no explanation except such as is given by the telegram above mentioned, ought to have been the subject of an inquiry by the jury. It ought to have been left to them to determine whether the failure of the appraisement was in any way caused by the agency or procurement of the insured ; that is, supposing that they found as a fact the sending of the telegram, and that it was caused or authorized by Reinhardt, and that Reinhardt was attending to this business in behalf of the insured by their request, as he testified. On the hypothesis that Reinhardt was their agent, they would be responsible for his action; and if it caused the failure of the appraisement there can be no recovery in this suit. Because this inquiry was not submitted to the jury in any of the plaintiff’s prayers, the judgment must be reversed. If the appraisement failed without the fault of the insured, the failure would not be any impediment to their right of recovery if they could maintain their suit on other grounds.
The question of waiver was decided on the former appeal ; and on this point the plaintiffs’ first prayer was cor
For the errors mentioned the judgment must be reversed.
Reversed and new trial awarded.