10 Mont. 340 | Mont. | 1891
The cause of action herein is founded upon an insurance policy, whereby appellant insured and agreed to indemnify respondents against loss which might happen by the destruction or damage of appellant's building, situate at More-land, Gallatin County, Montana, known as the Moreland Hotel, and certain furniture therein contained, by fire, to the extent of $1,500, the sum of $1,125 being placed upon said building, and the sum of $375 upon the said furniture. There were also in force during the same period three other policies of concurrent insurance, issued by certain other companies in favor of plaintiffs upon the same property, each in the sum of $1,500, and distributed in like amounts on said building and furniture as aforesaid. While said insurance contracts were in force, all of said property except a small portion of the furnitnre was destroyed by fire. This action was brought to enforce payment of said $1,500 indemnity, and the trial resulted in a judgment for plaintiffs in said sum, with interest and costs. Whereupon defendant moved for a new trial, upon a statement of the case, on the ground of insufficiency of the evidence to justify the verdict, and that the same is against law; and also errors of law occurring at the trial and excepted to by the moving party. Said motion being overruled the case is brought up by appeal from the order overruling the same, as well as appeal from the judgment.
The insurance policy involved provides, among other conditions, as follows: “The amount of loss or damage to be estimated according to the actual value of the property at the time of the loss; and to be paid within sixty days after the loss shall have been ascertained in accordance with, and within the terms and conditions of this policy, and proof of the same satisfactory to the said company shall have been made by the assured and received at the office of the company in Philadelphia. It shall be, however, optional with the company to repair, rebuild, or replace the property destroyed or damaged with other of like kind and quality within a reasonable time, giving notice of its intention so to do within sixty days after receipt of proofs herein required; and in case the company elects to rebuild, the assured shall, if required, furnish plans and specifications of the building herein described. The assured sustaining loss by fire
The plaintiffs in their complaint set up the contract of insurance, alleged the destruction of the property by fire, and “that plaintiffs’ loss thereby was $6,164 on said Moreland Hotel, and $1,851.14 on said furniture and fixtures contained in said hotel.” Plaintiffs further allege that they furnished defendant notice of said loss, and that “defendant by its adjusting agent made a
Defendant by answer denied the value of said building to be the sum alleged by plaintiffs, or any sum exceeding $3,250; and denied the value of said furniture to be the sum alleged by plaintiffs, or any sum exceeding $900; and said answer further put in issue all the allegations of plaintiffs’ complaint, except the existence of said insurance policy, the destruction of said property by fire, save a small portion of the furniture, and some other allegations not necessary to notice at this time.
In addition to the specific denials of plaintiffs’ allegations, defendant alleged by way of new matter of defense that the plaintiffs left, at the office of defendant’s agent, in the city of Helena, while said agent was absent therefrom, on or about September 15, 1887, “some paper which falsely stated that arbitrators had been agreed upon by plaintiffs and defendant;” that plaintiffs’ attention was called to this fact by defendant’s agent on the same day, and thereupon plaintiffs asked permission to retain said paper, stating that said paper should not be
The first and main point insisted upon by appellant is, that this action is brought upon an alleged award by arbitrators, and that no evidence of value of the property destroyed, except to establish an award, was admissible. This point was raised by defendant in the lower court at the trial, and objection was made to the introduction of any evidence as to the value of the property, or the amount of said loss, except to establish an award. This objection was overruled, and the court.admitted, over the objection and exception of defendant, evidence offered by plaintiffs tending to prove the allegations of the complaint as to the value of the property destroyed, and the loss, sustained by plaintiffs, independent of the appraisal or award of arbitrators, as alleged in the complaint. Proof was also admitted on behalf of plaintiff in respect to the alleged submission of the question of the value of said building and plaintiffs’ loss
Appellant further contends that plaintiffs failed to prove the selection of arbitrators or appraisers, and the appraisement by them and award of the value of the property destroyed, in the manner provided by said policy. We think without doubt plaintiffs failed in this particular, for the evidence does not show a compliance with the terms of the policy as to the selection of appraisers, or a compliance with its terms by them in appraising the property and making an award of value.
For a proper understanding of the case, and the application of our conclusion herein, it is necessary to make a brief summary of the conduct of the parties from the time the loss occurred until the action was brought. The evidence shows that immediately after said property was destroyed by fire, plaintiffs notified defendant’s agent thereof by telegram. Soon after this defendant’s agent visited the place of the fire, inspected and listed the furniture saved, took rough measurements of the foundation of the building, and then proceeded to Bozeman, where he was joined by Flowers, one of the plaintiffs, who brought with him the manager who was in charge of said hotel at and previous to the time of said fire. There the plaintiff Flowers, with said agent, obtained from stores certain lists and prices of furniture bought to furnish said hotel. The manager of said hotel assisted in giving said agent information of the articles in.said hotel at the time of the fire. The agent says in his testimony: “We had Barrett (the manager of said hotel) take the rooms, one by one, and had him designate all articles of furniture in each room, and by means of invoices which we had, put the prices of the articles. This list of articles here
The foregoing facts were proved without any essential conflict, and are taken principally from testimony introduced on
Counsel for appellant contends that defendant would have been prejudiced and injured by the retention of said proof of loss with such objectionable clause therein; that it was justified in returning the same to assured; that the refusal of assured to strike out said objectionable clause and return said proofs was a failure to make proof of loss as required by the policy. Appellant construes said clause as an attempt, on the part of the assured, to involve defendant in an implied admission of a material statement of fact which in truth never occurred, and which statement was false. We do not gather such impression from the evidence. The evidence introduced on the part of defendant alone shows a state of facts from which the assured could in good faith have presumed that Ketchum and De Noille were chosen by agreement to make the required estimates on said hotel building, although they were not chosen as appraisers in the manner provided by the policy, nor did they proceed to make appraisement and return award strictly in the manner provided by the policy. The proof of loss in question, as shown by the record, contained no statement to the effect that Ketchum and De Noille were chosen as arbitrators or appraisers by agreement between the company and the assured, or that they made or pretended to make an appraisement or award as required by the policy. The proof contains the following statement: “Loss on building as estimated by Ketchum, De Noille & Co., builders selected by agreement between agent of companies and assured.” Under the circumstances of the selection of said builders and the making of an estimate by them, we see no evidence of fraud, trick, or deceit in the insertion of that statement in the proof of loss. Moreover, had said statement been absolutely false in fact, we do not agree with the proposition of defendant’s counsel, that the
We return to the main question raised upon this appeal, i. e., that “plaintiffs must recover on an award by arbitrators or appraisers, if at all.” The question, as to how far courts will be governed by a provision in the contract, requiring that controversies arising as to the rights and liabilities of parties thereunder be submitted to arbitration, has engaged the profound consideration of both American and English courts of last resort. The conclusion reached, and probably settled beyond further controversy, is that a provision in a contract, requiring all differences or controversies arising between the parties as to'their rights and liabilities thereunder, to be submitted to arbitration, will not be allowed to interfere with or bar the litigation of such controversies when brought into court. To enforce such provisions would be to allow parties to barter away the jurisdiction of courts to determine the rights of parties and redress their wrongs. Therefore such provisions are disregarded as against public policy. But many of the same eminent authorities hold that a provision in a contract requiring that the value or quantity of a thing which might be involved in a controversy thereunder be ascertained and determined by arbitration, or in some other possible and reasonable manner, does not oust the jurisdiction of the courts, but only requires a certain character of evidence of a fact in controversy. Therefore a provision in a contract like the one under consideration in the case at bar, requiring that the value of the assured property, under certain conditions, shall be ascertained by appraisal, is not disregarded as against public policy, but is upheld as valid. (Scott v. Avery, 5 H. L. Cas. 811; Hamilton v. Liverpool L. & G. Ins. Co. 136 U. S. 242; United States v. Robeson, 9 Peters, 327; Scottish Un. & Nat. Ins. Co. v. Clancy, 71 Tex. 5; Wolff v. Liverpool & L. & G. Ins. Co. 50 N. J. L. 453; Gasser v. Sun Fire Office, 42 Minn. 315; Old Saucelito etc. Co. v. Commercial Un. Assur. Co. 66 Cal. 253; Sutro Tunnel Co. v. Segregated Bel.
The policy in the case at bar requires that if the parties fail to agree upon the amount of damage “the same shall then, at the written request of either party, be ascertained by an appraisal by “competent and impartial appraisers,” one to be selected by each party, and the two to select an umpire, etc. It is insisted by counsel for appellant that said clause, viewed in connection with the other provisions of the policy, and especially the clause that provides that “ until such proofs as above required are produced, and examinations and appraisals are permitted, the loss shall not be payable,” makes it obligatory upon the assured in this action to prove the amount of loss or damage by an appraisal obtained in the manner required by the policy, or show a fair endeavor, and failure without plaintiffs’ fault, to get such an appraisal; otherwise plaintiffs’ suit in court is premature and must fail. This is claimed by defendant’s counsel to be an imperative requirement of the plaintiffs, whether defendant requests such appraisal or not. There is no showing that either party requested such an appraisal. The defendant by answer expressly denies that it “ made a request of plaintiffs that the value of said building be ascertained by arbitrators to be mutually chosen, or to be chosen in any other manner.” The plaintiffs alleged in their complaint: “ That no demand has been made by the defendant for a further or any other reference of said loss on building or furniture or fixtures since said proofs of loss were so furnished.” This allegation is not denied.
In support of their position counsel for defendant cites certain authorities, which we will now briefly review. In the case of Old Saucelito etc. Co. v. Com. Un. Assur. Co. supra, it appears, from the opinion of the court, that the complaint stated “facts showing that a difference arose as to the amount of loss;” “ that plaintiff thereupon, and on request of defendant, chose ” arbitrators, to whom was submitted “ all differences of opinion as to the amount of said loss.” The plaintiff further averred that the arbitrators so selected failed to agree on the amount of loss or damage, and failed to select a third person to act with them in case of disagreement, and also failed to make an award; and the plaintiff, after waiting a reasonable time, withdrew from
The case of the United States v. Robeson, supra, is also cited by appellant. This case affirms the general rule, that where a contract provides that a certain fact, as of the transportation of certain additional freight over and above a certain quantity, shall be paid for at a given rate, on producing the certificate of the commanding officer, showing the quantity of such additional freight transported, such fact must be proved by the kind of evidence required by the terms of the contract, or ’ the party seeking to recover must show that he has made all reasonable effort to obtain such proof, before he can be allowed to introduce other evidence of such fact. In such a case the contract does not contemplate that anything is to be done by the person obligated to pay, except to await the certificate of the party previously designated by both parties to ascertain and certify the quantity. The contract does not contemplate that the paying party shall do anything toward obtaining such certificate, nor is there any alternative contemplated whereby the parties may, under certain circumstances, dispense altogether with the necessity for such certificate, nor that it shall only be required in case of “differences” of opinion as to the amount in question, and then can only be brought into existence by the joint action di both parties in selecting arbitrators to ascertain the value, as in the case at bar. As remarked in the case last cited, supra, “the principles involved .... are connected with the fiscal action of the government.” If the paying agent of the government disbursed money on other certificates or evidence other than such as the contract provided for, he did so at his own risk, for he was required to produce such certificates as. the contract called for in accounting for his disbursements.
In the case of Hamilton v. Liverpool & L.& G. Ins. Co. supra, it appears there was contention as to “whether defendant had duly requested and plaintiff had unreasonably refused to submit to such an appraisal and award as the policy called for.” But it is remarked by Mr. Justice Gray, in delivering the opinion •of the court, that the evidence upon that question does not depend in any degree “ on oral testimony or extrinsic facts, but wholly upon the construction of the correspondence in writing between the parties.....That correspondence clearly shows that the defendant repeatedly and explicitly, in writing, requested that the amount of the loss or damage should be submitted to appraisers in accordance with the terms of the policy; and that plaintiff as often peremptorily refused to do this unless defendant would consent in advance to define the legal powers and duties of the appraisers (which defendant was under no legal obligation to do).” It was held that “the court rightly instructed the jury that the defendant had requested in writing, and the plaintiff had declined, the appraisal provided for in the policy, and that plaintiff therefore could not maintain this action.” So in the case of Gasser v. Sun Fire Office, supra, dif
In the recent case of Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329; 9 Am. St. Rep. 598, the usual arbitration clause was under consideration. Mr. Justice Bailey, in delivering the opinion of the court, says: “The instructions given enumerate, among the defenses of which the defendant was seeking to avail itself, the failure of the plaintiff to submit her differences with the defendant in respect to her loss or damage to arbitration in accordance with the conditions of the policy, and on that question the jury were instructed as follows: ‘As to the question of arbitration, you are instructed that, under the provisions of the policy, if there was a dispute as to the amount of the loss, then either party could demand an arbitration to determine the amount of such loss, by serving a notice in writing on the opposite party; and before you can find against the plaintiff on this point, you must believe from the evidence that there-was a dispute between the parties as to the amount of the loss, and that notice in writing was served on- her, or some one authorized to act for her, demanding such arbitration in accordance with the provisions of the policy, and that she in person or by attorney, without sufficient cause, refused to submit to such arbitration.’ It is insisted that this instruction, though holding the law substantially in accordance with the defendant’s theory, is erroneous in not conforming in its hypothesis to the evidence as it was actually given, the evidence being, as is claimed, in accordance with the hypothesis of an instruction asked by the defendant.” The court held that said instruction was not erroneous. In the case of Gere v. Council Bluffs Ins. Co. 67 Iowa, 272, after suit was brought to recover the loss, the insurance company demanded .arbitration-, under a clause in the
In a comparatively recent case before the Supreme Court of Michigan (Nurney v. Firemen’s Fund Ins. Co. 63 Mich. 633; 6 Am. St. Rep. 388), it appears that differences had arisen between the parties as to the amount of loss. The policy in question contained an arbitration clause very much like the one in the case at bar; and although such differences had existed, as to the amount of loss, for some five months prior to the suit, no request for arbitration had been made by either' party. At the trial the defendant invoked the clause in the policy requiring arbitration, as well as another clause providing that no suit should be brought until after such arbitration was had. The trial court instructed the jury “'that the plaintiff could not maintain his suit until the. amount of his loss had first been determined by arbitration, or he had given notice to the defendant of his desire to have the same so determined, and the defendant had neglected or refused to comply with the request; and thereupon further instructed the jury to return their verdict for the defendant.” On appeal this was held to be error and the judgment was reversed. (See other cases upon this subject: Gibbs v. Continental Ins. Co. 13 Hun, 611; Mark v. National Fire Ins. Co. 24 Hun, 565, and affirmed in N. Y. Ct. of Appeals, 91 N. Y. 663; Hurst v. Litchfield, 39 N. Y. 377; Wallace v. German-American Ins. Co. 1 McCrary, 335; S. C., 4 McCrary, 123; Stephenson v. Piscataqua F. & M. Ins. Co. 54 Me. 69; Wolff v. Liverpool & L. & G. Ins. Co. supra; Western etc. Ins. Co. v. Putnam, 20 Neb. 331; Phœnix Ins. Co. v. Badger, 53 Wis. 283; Reed v. Washington etc. Ins. Co. 138 Mass. 572; German-American Ins. Co. v. Steiger, 109 Ill. 254; Lasher v. Northwestern Nat. Ins. Co. 55 How. Pr. 318; Crossley v. Connecticut Fire Ins. Co. 27 Fed. Rep. 30; Robinson v. Georges Ins. Co. 17 Me. 131; 35 Am. Dec. 239.
Without further reviewing authorities, we conclude from the number examined bearing upon this important subject that the tendency now is, to construe the provision found in contracts like the one before us, providing for arbitration as to differences
An important circumstance in the case at bar is, that so far as the record shows, defendant did not at any time signify to plaintiffs a difference of opinion as to the value of said destroyed property, or the amount of damage, as claimed by plaintiffs; or that its neglect to pay said claim was on the ground of a difference of opinion from that expressed in the plaintiffs’ proof of loss as to the value of said property. As appears by the record, that point was entirely lost sight of by defendant, in its contention that said clause in the proof of loss referring to Ketchum and De Noille as agreed upon to estimate the value of said building should be stricken out. Upon a careful review of the record it is found that the only expressions by defendant of dissatisfaction as to the stated value of said property was a remark by defendant’s agent to one of the assured, “that the figures seemed rather high,” referring to the estimate by Ketchum and De Noille. That was before proofs of loss were made and delivered, and the evidence is produced by plaintiffs. The defendant produced no evidence of having signified to plaintiffs a difference of opinion, as to the value of the property destroyed, from that expressed in plaintiffs’ proof of loss. We therefore hold that plaintiffs were not bound to show an appraisal or an award as to the amount of damages sustained; nor were plaintiffs bound to show that they had requested arbitration, and that failure to arbitrate was not through their default.
It is contended by counsel for the appellant that the court erred in instructing the jury to the effect that if the jury found that plaintiffs were entitled to recover any sum, they were also entitled to interest thereon at the rate of ten per cent per annum
The further assignments of error by appellant’s counsel have been carefully considered, but none of them are sustained. These assignments of error not specifically treated appear to be based upon the theory of defense set up by defendant, which we have not sustained.
It is ordered that the judgment of the trial court be affirmed, with costs.