109 P. 432 | Mont. | 1910
delivered the opinion of the •court.
The complaint in this action contains two counts, and, while ■they are labeled “causes of action,” it is manifest that the plaintiff sought to state but a single cause of action in two separate •counts. The first count declares upon the policy of fire insurance ; the second alleges the making of the contract of insurance •on October 14, 1907, by which certain property belonging to the plaintiff was insured for one year for $1,225. It gives a general •description of the property, alleges the destruction of it by fire on February 19,1908, and the loss suffered by plaintiff by reason thereof; that plaintiff furnished the required proof of loss; that thereafter, on May 12, 1908, plaintiff and defendant entered into an agreement, a copy of which is set forth, by which the amount of plaintiff’s loss was submitted to a board of appraisers; that pursuant to such agreement the appraisers qualified, met, appraised plaintiff’s loss, and made their return, in which plaintiff was awarded $963.07. This second count then contains paragraph 8, as follows: “ (8) This plaintiff further alleges that he is satisfied with the said award in so far as the said appraisers estimated the loss and valued the property that the said appraisers undertook to appraise; but this plaintiff alleges that the said arbitrators wrongfully refused to appraise the following described property.” And this is followed by an itemized list of property, the loss upon which was estimated by plaintiff at $386.20. It is then alleged that the plaintiff fully complied with all the terms and conditions of the policy binding upon him, but that defendant has refused to pay the amount of the award or the amount "which plaintiff claims for loss sustained by him upon goods not appraised. A general demurrer to each count was overruled, and defendant answered. Issues were joined upon the allegations of the first count. The answer to the second count admits the corporate existence of the defendant company, the making of the agreement submitting the loss to arbitration, the appraisement and award, and denies every other allegation of the count. The trial resulted in a verdict and judgment in
It is the rule in this state that if, upon the facts alleged in the complaint, the plaintiff is entitled to the relief demanded, or to any relief, the complaint is proof against a general demurrer. (Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49.) The same rule applies to each count of the complaint. This judgment cannot be sustained upon the first count. When the parties agreed to submit the amount of plaintiff’s loss to arbitration, and pursuant to such agreement the appraisers made their award, such award, unless set aside, was binding upon both parties, and fixed the amount of plaintiff’s loss. (Springfield Fire & Marine Ins. Co. v. Payne, 57 Kan. 291, 46 Pac. 315; Kerr on Insurance, sec. 217; Elliott on Insurance, sec. 317; 4 Joyce on Insurance, secs. 3247, 3250; Clement on Fire Insurance, p. 175; Georgia Home Ins. Co. v. Kline, 114 Ala. 366, 21 South. 958; 2 Am. & Eng. Ency. of Law, 2d ed., 794; 3 Cyc. 728; Revised Codes, secs. 7365-7374.) Randall v. Phoenix Ins. Co., 10 Mont. 362, 25 Pac. 960, might on first impression appear to hold to a contrary view, and we do not agree with much that is said in that ease; but the court remarks: “The observations in this case should be read in connection with the ease of Randall et al. v. American Fire Ins. Co.” (10 Mont. 340, 24 Am. St. Rep. 50, 25 Pac. 953). The case of Randall v. American Fire Ins. Co., discloses at once the theory upon which the court was proceeding in the Phoenix Case; and, assuming, for the purposes of this appeal, the soundness of the decision in the American Case, there does not appear to be anything in the decision in that case to justify the language used in the Phoenix Case. Since the amount of plaintiff’s loss was fixed by the award, he cannot maintain an action upon the policy and have a readjustment of the loss without having the award set aside; and the first count of the complaint may, therefore, be dismissed from further consideration.
The second count appears to contain every necessary allegation in an action for the amount of the award (11 Eney. of PI. &. Pr. 411); and the demurrer to this count and the objection to the introduction of any evidence were properly overruled. While we are left somewhat in doubt as to the theory upon which the-cause was tried in the district court, it is incumbent upon us: to sustain the judgment, in whole or in part, if it can be done upon any rational theory. Without reviewing the evidence in: detail, it is sufficient to say that it supports the cause of action stated in the second count as we have analyzed it; and plaintiff was therefore entitled to judgment for the amount of the award,, unless reversible error was committed upon the trial.
Plaintiff offered in evidence the proof of loss which he made-prior to the appraisement. This proof was in the form of an itemized statement, verified by plaintiff. One of the items enumerated in this statement is a piano, upon which plaintiff fixed a valuation of $250 and claimed a loss in that amount. It appeared also that after this proof of loss was made, plaintiff was examined under oath by the adjuster for the insurance company, and upon such examination he testified that he purchased the piano in Minneapolis and paid for it $250. Upon his cross-examination while a witness in his own behalf upon the trial of this case, he was made to testify that he purchased the piano <
The conclusion we have reached as to the character of this action of itself disposes of the other assignments of error. The cause is remanded to the district court with directions to modify the judgment by reducing the amount thereof to $963.07, together with interest at eight per cent per annum, from July 20, 1908, sixty days after the date of the return of the appraisers, and for costs incurred in the district court; and, when so modified, the judgment will stand affirmed. The respondent will recover his costs in this court.
Modified and affirmed.