Needy v. German American Insurance

197 Pa. 460 | Pa. | 1901

Opinion by

Mb. Chief Justice McCollum,

“ The court below being of opinion that the clause in the policy providing for the ascertainment of the amount of the loss by appraisers was revocable at the pleasure of either party, and that the bringing of suit by the plaintiff was an effectual revocation by the assured, rejected our offer of evidence. This is the error and the only error complained of.” The above quotation from the printed argument in the appellant’s paper-book presents the only question for consideration in the case. It is in substantial conformity with the assignment of error as will readily appear in an inspection of the latter. A specification herein of the numerous delays occasioned by the action of the special agent of the defendant company is deemed unnecessary. It sufficiently appears in the uncontrádicted testimony of Needy. It is evidenced, inter alia, by sixteen letters addressed by the agent to Needy between December 25,1897 and March 29,1898, which were presented and considered on the trial, but have not been printed in the company’s paper-book. The letters showed, in part, at least, the delays caused as aforesaid, and they may have contributed to some extent, at least, to the revocation of the agreement. The appraisal agreement appears to have been signed on March 12, 1898, and John P. Boyle was appointed by the defendant company as one of the appraisers. Needy, the trustee, appointed Welty as the other appraiser more than two months previous thereto. The company’s special agent sent to Needy a blank form of arbitration naming William Lanahan as appraiser, and requested Needy to name one. This he did as above stated. A short time after that the company’s special agent notified Needy that Lanahan could not serve. He next, named Cunningham for the place and he, like his predecessor, discovered that he was unable to serve. It may be that other parties were named for the place previous to the appointment of Boyle, but if so they were not mentioned in Needy’s testimony. To this we may add that according to Needy’s testimony he never signed the agreement with Boyle’s name in it. The appraisers named in the agreement were unable to agree upon an umpire and the result was that inasmuch as the clause in the policy providing for the ascertainment of the amount of the loss by appraisers was revocable, the suit instituted on April 2, 1898, was an effectual revocation by'the assured.

We have failed to discover error in the charge of the court or in its rulings upon offers of evidence. The conclusion arrived at was in strict conformity with the law applicable to the case. If authorities are needed to support it a reference to the following cases ought to be regarded as sufficient: Gray v. Bell, 4 Watts, 411; Metz v. American Fire Ins. Co., 79 Pa. 478; Commercial Union Assurance Co. v. Hocking, 115 Pa. 407; Yost v. Dwelling House Insurance Co., 179 Pa. 381. In the case of Penn Plate Glass Co. v. Spring Garden Insurance Co., 189. Pa. 255, our Brother Mitchell, referring to three of the last mentioned eases in the preceding sentence, said, “ Suit by the insured without preliminary appraisement has been sustained because the agreement being revocable could not bind him.”

Judgment affirmed.