84 Wis. 184 | Wis. | 1893
The facts sufficient to raise the questions of law on this appeal are substantially as follows:
The appellant company issued its policy of insurance on the property of Marian Bensley, deceased, hereinafter described, February 1, 1889, for one year, of $1,000. The
The policy of insurance contains the following provision: “ The amount of sound value and of damage to the property may be determined by mutual agreement between the company and the assured; or, if they fail to agree, the same shall then, at the written request of either party, be ascertained by an appraisal of each article of personal property, or by an estimate in detail if a building, by competent and impartial appraisers, one to be selected by each party, and the two so chosen shall first select an umpire to act with
The plaintiff offered evidence tending to prove that the amount of the loss on the property in the said first class, was from $10,000 to $22,000; and on the property in the said second class was from $12,000 to $34,000, and the defendant relied upon said award of the appraisers. The circuit court held the award of the appraisers void, and did not consider it for the reason, as it is said, that the mortgagee never consented to the appointment of the appraisers, and was not represented in the matter of the appraisement in any way, and never consented thereto. The objections to the appraisement by the lparned counsel of the respondent are: First, that the said items of the bridge, tramway,stoves and pipe, and debris, were not considered by the appraisers ; second, that the mortgagee was not a party to the awards, and had no notice thereof; third, that the appraisement was not in compliance with the provisions of the policy in this: that the appraisers did not first appoint an umpire before acting; fourth, that the two appraisers-selected by the company were not impartial. The learned counsel of the appellant contends that the appraisement was strictly according to the policy, and the awards are binding and conclusive as to the amount of such loss or damage, and that, therefore, the judgment should be reversed. The above objections will be considered in their order, as the only material .questions in the case.
1. As to the omission from the award of the items named, it is not at all certain that they are embraced within the description of the property insured, and there is no evidence conclusive of the question. The schedule submitted by the assured to the appraisers did not contain these items, nor did the assured request the appraisers to appraise them, or call their attention to any such omission. If they ought
2. That the mortgagee was not a party to the appraisement, and had no notice of it, is an objection of much more importance. All of the insurance policies contain the same direction of “loss payable to Louisa W. L. Goff, the mortgagee, as her interest may appear.” To determine whether sbe was entitled to all tbe insurance, all of tbe policies of insurance must be considered together as one policy, and at tbe time when tbe loss occurred, and not since it has been determined in this case whether tbe loss is less or more than the mortgage. To determine tbe question whether the mortgagee ought to have had notice of the appointment of the appraisers, and to have been a party to the appraisement, it is important to know whether at that time it appeared that she was entitled to the whole insur-
In Brown v. Roger Williams Ins. Co. 5 R. I. 894, cited by respondents’ counsel, the direction was, “ loss or damage payable to the mortgagee.” It was held that this was an unconditional assignment of the policy and the loss, and that the assured, or mortgagor, had no interest in it, and that it made no difference whether the mortgage money was unpaid or not. It was therefore held that the mortgagee was entitled to control the adjustment of the loss, or any arbitration for that purpose. In Hathaway v. Orient Ins. Co. 11 N. Y. Supp. 413, the mortgagor agreed to have
In the case of Hall v. Fire Asso. 64 N. H. 405, the insurance was payable to the mortgagee “ as her interest might appear.” The assured brought the suit, and the defendant pleaded that he was concluded by an arbitration agreed upon. The court held that the assured in such a case had the right to sue alone, and that the rights of the mortgagee would be fully protected in that way, as if she had been joined in the action; and that the assured had the right to do anything within the contract, even to a breach of the conditions and forfeiture. But here the matters of the loss were submitted to referees by an agreement of the parties, .and they adjusted them at a sum less than the mortgage debt. The question was whether the mortgagee was bound by such an award without her consent. It was held that she was not, because the policy did not provide for an arbitration. If it had so provided, the purport of the decision is that the mortgagee would have been bound. This case is not, therefore, an exception to the authorities cited on the other side, and is against the contention of the learned counsel of the respondent. This case is in accord with 2 Morse, Fire Ins. 1122, and Martin v. Franklin F. Ins. Co. 38 N. J. Law, 140: “ That the mere designation of another, to whom the insurance is payable, does not alter the contract of insurance in the least. It is still the owner of the
It is doubtful whether a case can be found that holds that anything less than a complete and unconditional assignment of the policy will take away the right of the assured to sue on it and to do any act in respect to the loss or its adjustment within the provisions of the contract, without consulting the person named in the policy to receive the money after the amount is determined. In all such cases the mortgagee may be said to have a conditional interest in the policy, and it may be proper for the assured to consult him in any adjustment of the loss, or even join him as a party plaintiff, as in Winne v. Niagara F. Ins. Co. 91 N. Y. 185; but it is neither' imperative nor necessary. The owner of the premises has an insurable interest, and he is the assured and the only party to the contract, and personally bound by its conditions, and he has the power to do anything within the terms of the contract, with or without the consent of the mortgagee. 1 Wood, Fire Ins. § 299. Where there is a direction that the money be paid to the holder of a trust deed of the premises, the assured is the proper party to bring and control the suit. Thatch v. Metropole Ins. Co. 3 McCrary, 387. The interest of the mortgagor a¡nd mortgagee are not the same, but adverse; and if both are joined in the suit, or if they have equal power in the adjustment of the loss, they might disagree. The mortgagor has at least the right to be present when the amount due on the mortgage and the mortgagee’s interest in the insurance moneys are determined. Irreconcilable conflict between them might occur. One or the other must have full control, not only of the adjustment of the loss, but of the action. The assured is the party named in the contract, and bound by it, and the one to whom the insurance company is bound; and in such a case as this the
This principle is well illustrated in mutual insurance. The action must be brought by the party to the policy who gave the premium note and is a member of the company, and not by the mortgagee. Nevins v. Rockingham Mut. F. Ins. Co. 25 N. H. 22; and the same in Blanchard v. Atlantic Mut. F. Ins. Co. 33 N. H. 9. In Baldwin v. Phoenix Ins. Co. 60 N. H. 164, the same principles are laid down as in Loring v. Manufacturers’ Ins. Co., 8 Gray, 28. Where the loss is payable to another “ as his interest may appear,” it is not an assignment of the policy or a stipulation to pay to such person the whole loss; and he cannot, therefore, bring the suit. Thatch v. Metropole Ins. Co. 3 McCrary, 387.
It is claimed by the learned counsel of the appellant that this case is ruled by Pupke v. Resolute F. Ins. Co. 17 Wis. 379. In that case Wise & Co. were the assured, and after the fire they assigned their interest in the policy to the plaintiffs, with the consent of the company. On the trial the defendant company offered to prove that in the examination of the assured in relation to the loss, subsequent to the assignment, Wise & Co. presented false and altered bills of purchase, etc., to defraud the company; and the witness was asked what took place on said examination, in order to prove that the assured committed such a fraud in the proofs of loss as invalidated the policy. The circuit court sustained the objection, on the ground that, after the assignment of the policy, the assured could do nothing to defeat the policy. The same question was presented in other forms with the same ruling. This court held such ruling erroneous. Mr. Justice PaiNe said in his opinion: “ Such consent [of the company to- the assignment] only authorizes the assignee to be substituted as payee in case a liability to pay accrues according to the terms and conditions of the policy. Put if those terms and conditions are not complied with, then there is never any liability to pay anybody, and it is immaterial whether the violation occurs after or before the loss. If it be such violation as would defeat a recovery by the party originally insured, it must have like effect as against the assignee.” The only reason why this decision is not in point is that it goes beyond tha necessities of this case. Here there is no assignment of the policy. It, of course, follows from this
3. The omission of th,e appraisers to first appoint an umpire before they proceeded to appraise the loss does not invalidate their award. This objection, at first blush, would seem to be technical. The provision of the policy is that “ the two [appraisers] so chosen shall first select an umpire to act with them in case of their disagreement, ; . . and the award of any two in writing, under oath, shall be binding and conclusive,” etc. Such third person is not strictly an umpire. An umpire acts alone in hearing the whole case de novo in ease of disagreement of the arbitrators. He is a third arbitrator, to be called in to ^act with the others after disagreement, and then any two of them make the award. Morse, Arb. 241. I find no evidence in the record that the appraisers did not first appoint such a person. I may have overlooked the evidence. The report or award of the arbitrators, is silent on the subject. May it not be presumed that they did appoint an umpire at the proper time, according to the policy? They are not required to report the fact, or to make the selection in writing.' They may have' selected an umpire and notified him of his selection, for anything that appears. It is the duty of the appraisers, and not of the parties, and if they neglected it it was ‘not the fault of either party. If the parties are responsible for the omission, then they both waived it, being present and not requiring the appraisers to make the selection. In the submission they say that “ in case of disagreement the said appraisers shall select a third, who shall act with them in matter's of difference only.” This is a waiver of record, and both parties ought to be estopped, and such is clearly the law. Where an Umpire, strictly speaking, had been'appointed and should
4. The objection that the two arbitrators selected by the company were not impartial is not supported by any evidence whatever, and the court refused to submit any such
By the Oouri.— The judgment of the circuit court is reversed, and the cause remanded with direction to render judgment on and according to the award of the appraisers.