Canfield v. Watertown Fire Insurance, 55 Wis. 419

55 Wis. 419 | Wis. | 1882

LtoN, J.

I. The learned counsel for the defendant maintained in his argument that the stipulation to arbitrate contained in the policy operates to make an award under it a condition precedent to the right of the plaintiff to maintain an action for his loss in a case in which, as in this case, there is a dispute as to the amount of the loss, and the insurer has duly demanded a submission of the question of difference to arbitrators. If this is so, it would seem that the plaintiff must allege and prove a valid award in order to maintain his action; in which case, of course, the sum awarded would be the measure of his recovery. If the award actually made in this case is valid, the defendant has paid the plaintiff the sum awarded, which would be a full payment of his loss, ■and this action cannot be maintained. If the award is invalid, the plaintiff must (if the position of counsel is correct), procure a valid award, and thus determine the amount of his loss before he can maintain an action on his policy. Hence, whether the award already made is valid or invalid, the plaintiff was not entitled to recover, and the court prop•erly directed a verdict for the defendant.

There is no stipulation in the policy that an award shall precede the right to sue upon the policy. In the absence of such stipulation the law is well settled that an agreement to ascertain the amount of a loss by arbitration is not a condition precedent, a waiver or performance of which, or an offer to perform, must be shown by the plaintiff. Wood on Ins., § 431, and case cited in notes. Whether the rule would be different if the policy provided that the award should precede the right to sue upon the policy is not here determined. The cases seem to be in hopeless conflict on the question. There is some discussion of it and references to some of the cases in the opinion of Mr. Justice Orton in Phœnix Ins. Co. v. Badger, 53 Wis., 283, but the question is not there decided, the judgment going upon grounds which rendered the question immaterial. It must be held that, under the stipulation to arbitrate contained in the policy in suit, an award is not a condition precedent to the plaintiff’s right to maintain an action on such policy.

II. The next question is, can the plaintiff show in this action that the award is invalid, or must he resort to an equitable action to set it aside? The general rule of the common law is that, in an action at law upon an award, it cannot be impeached by pleading as a defense matters not appearing upon the face of the award, although such matters may constitute a good cause for a bill in equity to set the award aside. Morse on Arb. & Award, 595; Ferson v. Drew, 19 Wis., 225.

It was settled in Ferson v. Drew that the code has changed the rule by permitting a defendant to interpose by answer all the defenses or counterclaims he has, whether legal or equitable, or both, so that now in an action at law on an award, the defendant may set up any matter which shows the award-invalid, whether such matter appears upon its face or not. Ferson v. Drew was a suit in equity to restrain the prosecution of an action on an award previously commenced, and to-vacate the award on the ground that the arbitrator had committed gross mistakes in certain computations, etc. It was held that the grounds of action were available to the' plaintiffs as a defense in the action at law on the award, and hence that a demurrer to the answer in the equity action was properly sustained as a demurrer to the complaint therein. The principle upon which the case was decided is sufficiently comprehensive to admit any ground of defense which goes to the validity of the award. The only distinction between that case and this is that in Ferson v. Drew, or rather in Drew v. Ferson (which was the action on the award), the plaintiff pleaded the award, and the defendant was allowed to impeach its validity by answer; while here the defendant sets up the award in his answer as a defense; and the statute interposes a denial of its validity by the plaintiff, without his spreading an express denial thereof upon the record. E. S., 728, secs. 2666-7. The two cases are alike in principle, and the present case is ruled by Ferson v. Drew; hence it was competent for the plaintiff to prove in this action any facts, the existence of which would invalidate the award pleaded and relied upon by the defendant.

III. ¥e are now to determine whether the facts which the plaintiff offered, but was not allowed, to prove, would, if proved, invalidate the award. The offers are not very clearly or very fully expressed, but due allowance must be made for the fact that they were necessarily framed in the haste incident to the trial. It would be unreasonable to require that they should be expressed with the precision and accuracy required in pleadings; and such a requirement would be especially unreasonable in this case, in view of the fact that the offers were made after the court had in effect ruled out all evidence impeaching the validity of the award, and no objection was taken to the admission of the offered evidence because the offers lacked precision or explicitness. Ve think the plaintiff substantially offered to prove that he was deprived of the right to introduce any evidence to the arbitrators (whether through the act of the defendant or the arbitrators seems immaterial), and that the arbitrators, excluded the damages to unregistered negatives from their appraisal and award.

1. As to the exclusion of evidence. Whether the submission and award are ruled by the statute (R. S., 892, ch. 153), or whether they constituted merely a common law arbitration, we are of the opinion that the plaintiff was entitled to introduce evidence to the arbitrators of the amount, of his loss. If the proceeding was ruled by the statute (as. counsel for defendant maintained in his argument), the exclusion of evidence violated a plain provision of section 3549, which is that “ all of the arbitrators must meet together and hear all the proofs and allegations of the parties.” If this was merely a common law arbitration, the right of the plaintiff to introduce evidence pertinent and material to the issue is equally clear. Morse on Arb. & Award, 142 et seq., and cases cited. Whether it be a statutory or common law arbitration, the exclusion of proper testimony is fatal to the award.

In Van Courtlandt v. Underhill, 17 Johns., 405, decided by the court for the correction of errors, Chief Justice SpbNoeR said: “If the arbitrators refuse to hear evidence pertinent and material to the matter in controversy, it is unquestionably such misconduct as will vitiate an award in a court of chancery.” Page 408. We have already held that ihe aggrieved party may also be heard to assert the invalidity of the award for such cause in a court of law. The same result would necessarily follow the exclusion of such evidence through the' fraud of the opposite party. We do not intend to say that it is not competent for parties to an arbitration so to frame the submission that the arbitrators may decide the controversy upon their own judgment and ■observation, without resort to evidence aliunde, but here we have no such submission.

2. As. to the alleged failure of the arbitrators to include in their award the damages to unregistered negatives, it is only necessary to say that such negatives were included in the policy and submission, and it does not conclusively appear from the award that the damages thereto were included therein. The award is that the loss amounted to a certain aggregate sum “ on negatives, roller, and furniture, and other property.” While, perhaps, in the absence of proof, it might fairly be presumed that all of the negatives were included, yet the presumption is not conclusive, and the plaintiff should be allowed to show that in fact all wrere not included. The rule undoubtedly is that the failure to pass upon all of the matters submitted is' fatal to the whole award, rendering it void. Morse, 345, and csaes cited in note 1. The evidence offered to prove the foregoing propositions of fact should have been received. Its rejection was error.

IV. A single additional point remains to be considered. The complaint alleges that when the policy was issued the plaintiff was the owner of the insured property, and continued the owner thereof until it was burned. To this the defendant answered that he had no knowledge or information thereof sufficient to form a belief, but admitted the issuing of the policy which described the property as that of the plaintiff. No proof of title to the insured property was made or offered by the plaintiff. Counsel for defendant claims that this omission is fatal to the plaintiff’s right of recovery, and that the direction to the jury to find for the defendant should be upheld on that ground. The position is not well taken. The true rule is thus stated by Mr. "Wood, and is well fortified with authority: “ While, if denied, the plaintiff must establish an insurable interest in the property, yet the fact that the policy describes the property as that of the insured, is prima, facie sufficient, and casts the burden upon the company of showing that in fact he had no interest.” "Wood on Ins., 500, § 2?0. . . *>

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.