114 Ala. 366 | Ala. | 1896
The plaintiffs sued the defendant, Insurance Company, for the loss by a fire of a stock of merchandise insured by the defendant.
The policy contained the following stipulation : “In the event of a disagreement as to the amount of the loss, the same shall as above provided be ascertained by two competent and disinterested appraisers, the insurance company and the insured each selecting one, and the two so chosen shall 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 to the umpire ; and the award of any two in writing shall determine the amount of such loss ; the parties thereto shall pay the appraisers selected by them and shall bear equally the expenses of the appraisal and umpire.’’ Differences having arisen, the appraisers and umpire were duly selected and they entered upon the discharge of their duties and made their award in writing. There was also a separate agreement of submission entered into in writing by the parties after the loss occurred, as follows : “That Isaac P. Patterson and E. A. Scott shall appraise and estimate the sound value and loss upon the property destroyed and damaged by the fire of the 25th of December, 1894, as specified below; Provided, that the said appraisers
“It is expressly understood'that this agreement and appraisement is for the purpose of ascertaining and fixing the amount of the sound value and loss and damage only, to the property hereinafter described, and shall not determine, waive or invalidate any other right or rights of either party to this agreement.
“The. property on which the sound; value, loss and damage is to be determined is as follows, to-wit:
“H. A. Kline & Co. — Upon their stock of dry goods, notions, clothing, gents’ and ladies’ underwear, boots, shoes, trunks, valises, hats, caps, and such other merchandise not more hazardous as is usual to their trade ; all of which is contained on the first and second floors of the two-story brick metal roof building, situated number 120 on the west side of 19th street, between 1st and 2d avenues, in Birmingham, Ala.
“It is further expressly understood and agreed, that in determining the sound value and the loss or damage upon the property hereinbefore mentioned, the said appraisers are to make an estimate of the actual cash cost of replacing or repairing the same, or the actual cash value thereof, at and immediately preceding the time of the fire, and in case of depreciation of the property from use or age, condition, location or otherwise, a proper deduction shall be made therefor.”
The award was as follows: “We have carefully examined the premises and the remains of the property hereinbefore specified, in accordance with the foregoing appointment, and have determined the sound value to be twelve thousand, six hundred and sixty-one dollars and twenty-one cents ($12,661.21), and the loss to be five thousand, nine hundred and thirty-seven dollars and seventy-one cents ($5,937.71). Witness our hands this 12th day of January, 1895.” (Signed by the arbitrators .)
The defendant pleaded in bar of the action, the agreement contained in the policy, the special agreement of submission and the award, and further, alleged payment by the defendant to the plaintiffs of the sum
The defendant demurred to the replication, raising ■the question whether the award was conclusive upon the plaintiffs that all matters submitted had been passed -Upon and adjudged by the arbitrators.
It is not to be questioned that the agreement of submission included the ascertainment'by the arbitrators of the loss and damage done to the goods which were
The general principle that an award, valid on its face, can only be impeached by a bill in equity, filed for that purpose, on account of fraud or other improper conduct of the arbitrators, is virtually conceded by appellees’ counsel. They insist upon only one exception to the rule, which is, as they contend, that it may always be shown by averment and proof cle hors the award, that the arbitrators refused to pass upon some matter within the submission and properly before them.
In Wright v. Bolton, 8 Ala. 548, it was decided that an award, whether made at common law or under the statute, had essentially the elements of a judgment of a court, and is final and conclusive. In Wolff v. Shelton, 51 Ala. 423, it is said to be a judgment of a court constituted by the parties themselves, final and conclusive as to the matters submitted, and can only be impeached for fraud, want of notice (when notice is required), or improper conduct on the part of the arbitrators which is injurious to the party complaining: and like the judgment of other courts all reasonable presumptions are to •be made in its favor.
In Yeatman v. Mattison, 59 Ala. 382, it was said, if the submission of matters to be arbitrated was regular and ?the award responds to every material question submitted, it is as conclusive between the parties as the
These authorities are in line with the accepted doctrine of the courts generally. See 2 Am. & Eng. Encyc. Law, (2d ed.), 794 et seq., where many of the authorities are collated. Though the cases are not in harmony upon the point, there are many which hold that an award, under a general submission of all matters in difference bars all further proceedings in regard to all matters that come within the scope of such submission, although some of them were not presented to the arbitrators, nor included in the award. See Ib. p. 800, note 2; McJimsey v. Traverse, 1 Stew. (Ala.) 244. The necessities of this case do not require that.we should affirm or disaffirm the soundness of this .rule, and we will not be regarded as expressing an opinion upon it. Here the submission, on its face, submitted and carried before the arbitrators, the matter of the entire loss, and the award shows they passed upon, and adjudicated the entire loss ; and to suffer the inquiry which the plaintiffs now propose would be to open to contradiction and impeachment, in a court of law, that which is the equivalent of a final judgment, for no other cause than that the arbitrators committed an error of judgment, prejudicial to the plaintiff. Such relief, in respect of common law arbitration like this, is not obtainable in a court of law. To hold otherwise would be to destroy the finality of the award entirely; for it is manifest that if one part of the adjudication, shown by the award, may be contradicted and set aside, the entire adjudication may be.
In so far as expressions found in the New Jersey cases, relied upon by plaintiffs may appear to sanction the doctrine that an award may be thus contradicted, we regard them as unsound, and must decline to follow them.
We have been referred to the case of Graham v. Woodall, 86 Ala. 313. The case is not in point. The objection there was one of jurisdiction of the arbitrators, arising out of the contention that they failed to give the complaining parties the notice required by the submission.
The parties, by their pleadings, have precluded inquiry touching the distinctions, referred to by counsel,
Reversed and remanded.