135 Mich. 10 | Mich. | 1903
February 14, 1902, certain personal property belonging to plaintiff was burned. This suit is brought to recover on an insurance policy covering said property, issued to plaintiff by defendant. A verdict was directed for defendant on the ground that arbitration proceedings were pending and undetermined when suit was commenced. The sole question for our consideration re-’ lates to the correctness of this ruling. The facts are these: The policy — which was a Michigan standard policy — contained these provisions:
“ In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first 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 in writing of any two shall b e prima facie evidence of the amount of such loss. * * *
“The loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss, herein required, have been received by this company, including an award by appraisers when appraisal has been required. * * *
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. ”
After considerable correspondence between the parties (plaintiff’s attorney acting for his client in conducting said correspondence), articles of arbitration were signed on the 26th of August, 1902. In those articles it was stated that:
“ W. E. Williams and John Rowson shall appraise the*12 sound value and the loss upon the property damaged or destroyed by fire: * * * Provided, the said appraisers shall first select a competent and disinterested umpire, who shall act with them in the matters of difference only. The award of any two of them, made in writing, and in accordance with this agreement, shall be prima facie evidence of the amount of such sound value and loss.”
. It appears that Williams was the selection • of plaintiff and Rowson of defendant. Williams and Rowson met on August 27th, and appointed one A. J. Auer umpire. Auer at once refused to act, on the ground that he had property destroyed in the same fire that occasioned plaintiff’s loss. Thereupon Williams and Rowson again met, either on August 27th or 28th. In this conference they failed to agree upon a third man, and Rowson returned to his home in Grand Rapids. Williams saw Rowson two or three days later in Grand Rapids, and “spoke to him about agreeing about a third arbitrator, or giving the matter up.” Rowson wanted to wait a few days longer. On the 8th of September Williams withdrew as arbitrator. On that same day — namely, September 8th — plaintiff wrote defendant that Mr. Williams declined to act longer as arbitrator “for the present, and under the present arrangement and association. * * * I do not think you acted in good faith in regard to the arbitration. Unless you take further steps to proceed with the arbitration immediately, I shall commence suit as soon as I can get to it. * * * Of course, we are open to offer of settlement, if reasonable, at any time.” Defendant answered this letter on September 9th, insisting that the arbitration arrangement be carried out, and suggesting that it would prejudice no one if plaintiff made an offer of compromise. Plaintiff answered this letter September 10th, offering to take 75 percent, of his claim in settlement, adding:
“You will please note, however, that if in the interim you desire to go on with the arbitration or proceedings for an award as to the amount of loss, we are willing to meet you at any time, and, if necessary, select a new arbitrator. We do not decline to arbitrate, but we do claim that we*13 are not obliged to dally along indefinitely in this kind of a way.”
Defendant replied September 12th by a reference to its letter of the 9th. It again insisted upon the arbitration, and declined to accept the offer of compromise. September 17th defendant formally requested plaintiff to name another arbitrator in place of Mr. Williams, calling his attention to the provisions of the policy respecting the * award. No answer was made to'this, but on the 30th of September plaintiff commenced this suit.
Several reasons are urged why this suit could be commenced notwithstanding the pendency of the arbitration proceedings.
It is also claimed by plaintiff that the failure of the two arbitrators to agree upon a competent and disinterested umpire was entirely due to the unreasonable conduct of
‘ ‘ The conduct of the arbitrator of the company, or the conduct of the company at the time of the arbitration, or the delay of the arbitrators to agree, between the 27th day of August and the 8th day of September, under the circumstances of this case, upon another umpire, was not such conduct as would warrant the plaintiff in withdrawing from that arbitration, abandoning it, and claiming that the company had waived its rights under that contract for an arbitration, and had abandoned the arbitration.”
It follows, therefore, that the judgment of the court below should be affirmed.