Gragg v. Northwestern National Insurance

140 Mo. App. 685 | Mo. Ct. App. | 1910

ELLISON, J.

This action is based on a policy of fire insurance. The judgment in the trial court was for the plaintiff.

The case was before this court on a former appeal when the judgment was reversed. It will be found on examination of the opinion (132 Mo. App. 405) that plaintiff had instituted his action before resorting to an arbitration as provided in the policy in case of disagreement, which we held he could not legally do. The reversal was had on June 29, 1908. Soon thereafter, in July, plaintiff requested the selection of arbitrators, but defendant did not act upon such request. Afterwards, on the 4th of August, plaintiff wrote a letter to defendant asking for arbitration. This also was ignored.

Notwithstanding tfie judgment was reversed on account of the action being instituted before demanding, arbitration, yet that did not preclude plaintiff from af-terwards making such demand preparatory to a new action. [McNees v. Insurance Co., 69 Mo. App. 232.]

No arbitration was had before the present action was instituted on account, as plaintiff claims, of defendant waiving the right, or refusing to enter into it. We have stated the evidence of waiver or refusal and the trial court submitted the question to the jury on proper instructions. We consider such evidence authorized the submission and the verdict. [McCullough v. Insurance Co., 113 Mo. 606; Fowble v. Insurance Co., 106 Mo. App. 527; Ball v. Insurance Co., 129 Mo. App. 34.]

Defendant insists that it was error' to allow interest from the 1st of October, 1906. That claim is made on this ground: That nothing was due, under the terms of the policy until sixty days after an appraisement, and that no demand was made for such appraisement until July, 1908. But if an appraisement was refused, with-, out statement of any cause, or waived by 'defendant when finally offered by plaintiff, it had the effect of nullifying the provision of the policy giving the right of appraisement. In other words, defendant cannot be permitted to seek or obtain aid from the policy provisions for ap-praisement or arbitration wbsn it has, itself, set such provision aside.

We have, taken due note of and given due consideration to, defendant’s suggestions on the question of ap-praisement or arbitration, the time: for bringing the action, the allowance of interest, etc., and are not impressed with them.

In our view we should not disturb the judgment on account of an allowance made for vexatious delay in payment of the claim. The evidence would have justified a finding either way. The instructions on the part of defendant explained fully that no allowance should be made on that account merely for the reason that the defense was not found to be such as could be sustained. We do not see any right to interfere within the statement of the rule in such cases made by us in Blackwell v. Ins. Co., 80 Mo. App. 75.

There were other points suggested against the judgment, but we believe them not well taken, and it will be affirmed.

All concur.