| Ill. App. Ct. | Jan 30, 1893
Opinion of the Court, the
The appellee, Mrs. S. E. Hamilton, and the appellant company, being unable to agree as to the value of a building belonging to the former, which, while covered by a policy of insurance against loss by fire, issued by the appellant company, had been destroyed by fire, submitted their differences to Q. E. C. Kaemper and Joseph Buerkin, as arbitrators. These arbitrators rendered an award, fixing the value of the building at $695.24. This is a bill in chancery filed by Mrs. Hamilton to set aside the award and to reform the policy in respect of an error made in drafting it, and also praying for a decree against the appellant company for the amount of the loss by the fire. The alleged error in writing the policy was admitted by the appellant and no complaint is made by either party to the decree, so far as the reformation of the policy is concerned.
After a full hearing upon bill, ansvrer, replication and proofs, the Circuit Court found that the arbitrators appointed a day for the examination of the site of the burned building and for hearing evidence as to its value, and notified Mrs. Hamilton thereof, but did not themselves attend at the time and place so named and that no hearing was at any time had. That on a day prior to the day appointed for a hearing, Buerkin, one of the arbitrators, visited the scene of the fire, and in the absence of Kaemper, the other arbitrator, and of Mrs. Hamilton, made an examination of the ruins of the building and had some casual conversation with persons living near there concerning the building, its dimensions, age and value, and reported the information thus obtained and his conclusions to his co-arbitrator, and that upon this alone the award was rendered. The court further found that the building was of much greater value than the amount fixed by the arbitrators and that the award was unjust to Mrs. Hamilton, the complainant.
Upon these findings a decree was rendered setting aside and vacating the award, but as it appeared that the bill had been filed before the time allowed by a clause of the policy for the payment of the loss, the court refused to decree payment thereof, but declared and established a right in complainant to an action at law upon the policy without prejudice because of the agreement to submit the matter to arbitrar tion. This is an appeal from that decree. We have examined the proofs and think the evidence amply supports the findings of the court.
The building was totally destroyed by fire and it was necessary to a proper discharge of their duties that the arbitrators should receive proofs as to its value. This being true, it was the imperative duty of the arbitrators to fix a time and place for a hearing, and to give the parties notice thereof, and to hear them in the presence of each other and of all the arbitrators. In acquiring information or knowledge upon which a conclusion was to be based, the arbitrators were required to act together. Not having so performed their duties, the award was properly declared void by the Circuit Court. Ingraham v. Whitmore, 75 Ill. 24" date_filed="1874-09-15" court="Ill." case_name="Ingraham v. Whitmore">75 Ill. 24; Alexander v. Cunningham, 111 Ill. 511" date_filed="1884-11-17" court="Ill." case_name="Alexander v. Cunningham">111 Ill. 511; Vessel Owners, etc., v. Taylor, 126 Ill. 250" date_filed="1888-11-15" court="Ill." case_name="Vessel Owners' Towing Co. v. Taylor">126 Ill. 250; 1 Amer. and Eng. Ency. of law, p. 683 and 685.
Complaint is made of the order of the court requiring that costs be paid, one half by the appellant and the other half by Mrs. Hamilton. The imposition of costs in chancery suits rests in the sound discretion of the court, and wé think the appellant has no just ground of complaint as to exercise of the discretion in this case. It was insisting upon the validity of the award and upon all advantage and benefit arising therefrom. It resisted all efforts of the appellee, Mrs. Hamilton, to free herself from the effect of the award, and in this failed. As neither party seemed to be chargeable with "wrongful intent or act in the erroneous action of the arbitrators, the court very properly adjudged that each party should bear an equal burden of costs.
The decree must be and is affirmed.