61 Mo. App. 335 | Mo. Ct. App. | 1895
—The provisions in the policy under which the claim is here made, in so far as they bear upon the question of arbitration, are like those involved in the case of Murphy v. Insurance Company, decided at
While it seems to be well established law that parties can not oust courts of their jurisdiction to try causes by stipulating that all matters pertaining to the cause of action .shall be submitted to arbitration, yet it is equally well established that the amount of loss or damage may be so provided for. Sancellito v. Ins. Co., 66 Cal. 253; Carroll v. Ins. Co., 72 Cal. 297; Norley v. Ins. Co., 85 Mich. 210; Canal Co. v. Coal Co., 50 N. Y. 252; Davenport v. Ins. Co., 10 Daly, 535; Ganche v. Ins. Co., 4 Woods, 102; Ins. Co. v. Creighton, 51 Ga. 95; U. S. v. Roberson, 9 Pet. 319. The same rule is held in England: Scott v. Avery, 8 Wellsby H. & G. 487. And so we have held and enforced the same principle in this state. St. Joe Iron Co. v. Helverson, 48 Mo. App. 383.
The foregoing authorities, as well as those cited in the Murphy case, assert that when such a contract is made by the parties, the condition for arbitration is a condition precedent to the right to sue. It is'not going too far to say that the contract is not to pay what the plaintiff may establish by evidence aliunde the award of the arbitrators, but it is to pay the sum which they may award. And, therefore, prior to such award, no cause of action has, in this sense, accrued. And that an action brought before such award is premature.
None of the cases which plaintiff has cited us, militate against what we have' said, among them, Zimeriski v. Ins. Co., 91 Mich. 600. Nor do they antagonize the authorities we have cited. They will be found on examination to refer to policies containing a provision for arbitration on the written request of either party;
In these instances the effective matter bringing into operation the provision for arbitration has not transpired. But, in the present policy, it is provided that the parties must adjust the amount of the loss, and if they can not agree, then arbitration must ensue. And the testimony, as given by plaintiff, was that, “after meeting Mr. Carroll (the adjusting agent) we could not agree on a settlement, and I put it into the hands of Messrs. Sangree & Lamm,” his attorneys. This, as was shown in the Murphy case, was sufficient to set into active operation the force of the arbitration clause.
2. But it is contended by plaintiff that, conceding there should ordinarily have been an arbitration, yet that defendant waived the provision by various acts in connection therewith.
We do not see much to sustain the claim of waiver as a- matter of fact; but, be that as it may, waiver is not pleaded by the plaintiff. It is true that there is a series of decisions in this state, holding that in insurance cases, evidence of waiver may be received under a plea of performance; but it will be noticed that such cases are where something has been tendered and accepted as performance. The supreme court has never held that, where nothing has been done in the way of performance, waiver could be proved without pleading it. The court has said that, when the thing has been done, but in a defective or imperfect way, or at an
Thus in Kyle's case, 11 Mo. 291, the court said that, “formal defects in ■ the preliminary proof, which may be supplied if objections are made by the underwriters in time, may well be regarded as waived, where the underwriters put their refusal to pay distinctly upon some other ground. Nor do I perceive any objection to such evidence on the ground that the pleadings-involve a different issue. It is merely evidence of a performance. It is not the case of a substitution of a new contract for the old one; it is not an excuse for nonperformance by the prevention or discharge of the defendants, but it is evidence of performance. The party for whose benefit the condition is asserted is presumed to understand its import, and his acceptance is the strongest evidence that the act agreed to be done-has been done according to contract.”
And so in the Russell case, 55 Mo. 593, the judge writing the opinion said, that it was a provision of our statute (section 2079, Revised Statutes, 1889), “that in pleading the performance of a condition precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part; and so, I presume, if he. avers the performance of any specified condition, as well as a general allegation of performing all the conditions, he is not bound to state specifically how and in what time he has performed them. The proof of waiver in this case is not an excuse for nonperformance at all—it is proof of performance within the meaning of the condition.”
The recent case of McCullough v. Ins. Co. 113, Mo. 606, was where proofs of loss were made out and deliv
Now, in the ease at bar, there was not the remotest attempt made to comply with the conditions as to arbitration—nothing was done in this respect which defendant could accept or reject—and the allegation that plaintiff had complied with all the conditions of the policy was not true. If there was any excuse why arbitration was not had, it should have been pleaded. Bayse v. Ambrose, 32 Mo. 484.
This is nowhere more clearly demonstrated than by the opinion of Judge Ewing in the case, of Pier v.
So, in this case, if there has anything occurred which prevented or excused plaintiff from entering, or offering to enter, into an arbitration, it should have been pleaded, so that an issue might be made up thereon. But, to say that the plaintiff can allege in his petition that he has complied with the condition as to arbitration and then permit him to prove that he has hot, and why not, would be to revolutionize the system of pleading and to do away with all idea of informing a defendant of what he must expect to meet at the trial. '
My associates, however, prefer not to express an opinion as to the matter of pleading, in view of the fact that an understanding seems to prevail, which has found expression in some of the reported cases, that in insurance cases a waiver may be proven without being pleaded. ■ They are, furthermore, of the opinion that it
The result is that we must reverse the judgment.