66 Neb. 584 | Neb. | 1902
Lead Opinion
The firm of Zlotky & Kurnick were engaged in merchandise at Fremont, Nebraska, and had insurance on their stock of goods for the aggregate amount of -¶12'000, in policies for different amounts, in the different insurance companies named in this cause of action as plaintiffs in error. The stock of goods was subsequently wholly or partially destroyed by fire. After the fire these various policies were assigned in writing by the firm to the First-National Bank of Fremont, to secure an indebtedness owing to that institution. A dispute arose as to the amount of loss, which, on demand 'of the companies, the holders of the policies refused to arbitrate. Suit was subsequently instituted on these various policies of insurance, and plaintiffs in the court below had judgment against each of the insurance companies, and these jndg-
Complaint is made in the brief of the insurance companies as to the form of the assignment of the various policies to the First National Bank of Fremont. The assignment was in writing, signed bj the members of the firm, and was made for the alleged purpose of securing an indebtedness of the firm to the bank, and for all that might be incurred in the future, before the insurance was actually collected. We see nothing wrong with the assignment, nor do we understand how the rights of the insurance companies were in any manner affected by it. This assignment is not argued at any length in the brief, and is probably not relied upon seriously by plaintiffs in error.
The only question arising in the case that we are seriously urged to examine is that the refusal of the assured to comply with what is termed the “appraisal clause” in the different policies of insurance, should abate this suit. The different policies involved in this controversy are written upon what is known as the “New York Standard Form,” and each contains, among other things, the following provisions:' “This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs. * * * In the event of disagreement as to the amount of the 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 determine the amount of such loss. * * * 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.”
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is
AFFIRMED.
Constitution, art. 1, sec. 6.
Constitution, art. 1, sec. 13.
Concurrence Opinion
concurring.
I do not think the constitutional provision with reference to trial by jury has any bearing upon the question involved in this case. The same provision is to be found in the constitution of the United States and in the constitutions of the several states. Notwithstanding these provisions and the jealousy with which the right of trial by jury is guarded by the federal courts, those courts and most of the state courts uphold the distinction between an agreement to arbitrate the whole matter in dispute and an agreement for arbitration of the amount of loss or damage only, as made in the case of Scott v. Avery. Were the question a new one, I do not believe this court would take the stand to which it is now committed. But every court, in the course of time, develops some peculiar doctrines with respect to which it differs from others of coordinate jurisdiction. Where these peculiar doctrines work no harm, certainty and consistency are no less im
I am therefore of opinion that the rule ought to be adhered to, and that the judgment should be affirmed.
Note. — Agreements to Arbitrate — Contracts—Pending Actions. Agreements to arbitrate embodied in contracts or made with, reference to pending actions, are favored by courts, when they do not — and this is the vital question — strike at the courts’ jurisdiction. Union P. R. Co. v. Anderson, 11 Colo., 293, 18 Pac. Rep., 24; Bailey v. District of Columbia, 9 App. Cas. [D. C.], 360; Masterson v. Masterson, 22 Ky. L. Rep., 1193, 60 S. W. Rep., 301; Hood v. Hartshorn, 100 Mass., 117, 1 Am. Rep., 89; Anderson v. Meislahn, 12 Daly [N. Y.], 149; Singerly v. Johnson, 3 Wkly. Notes Cas. [Pa.], 541; Knoche v. Chicago, M. & St. P. R. Co., 34 Fed. Rep., 471, 472. The opinion in this last ease was by Thayer, J.' (orally): A clause in a contract agreeing generally to submit all of the questions that might arise under the contract to arbitration, is void; the same being against public policy, because the effect is to oust the jurisdiction of the courts. Nevertheless, it is competent for parties to stipulate in a contract that the value .of property contracted to be sold or delivered shall be ascertained or fixed by arbitrators chosen for the purpose. Such special stipulations in contracts, relating to the manner in which the value of things forming the subject-matter of the contract shall be ascertained, are valid. In the latter class of cases, parties can not ignore the stipulation and sue on the contract; they must at least make an effort to have the value of the thing ascertained according to the stipulations in the agreement, before, suit can be maintained. — W. F. B.