66 Mo. App. 90 | Mo. Ct. App. | 1896
This action is on a policy of fire insurance on a stock of merchandise, in which plaintiffs recovered judgment in the trial court.
The policy provided that in case of loss, the amount thereof should be determined by the parties; that if they could not agree, then the loss was to be determined by arbitration; that the amount thus determined should be paid within sixty days after such determination. The policy was, in all respects, similar to the policies in Murphy v. Ins. Co. and McNees v. Ins. Co., 61 Mo. App. 321, 335.
The petition declared that plaintiff had performed all the conditions of the policy on his part. The answer of defendant set up that after the disagreement of the parties, the “defendant, in pursuance of the terms of said policy of insurance, and after plaintiffs and defendant had disagreed as to the amount of the loss, notified and demanded from plaintiffs an appraisement of the loss, under the policy of insurance aforesaid, and defendant then and there named and selected a competent and disinterested appraiser and requested and notified plaintiffs to choose and select another disinterested and competent appraiser, as provided by the terms of said policy of insurance, all of which demands so made by defendant on plaintiffs were refused, they, the said plaintiffs, then and there refusing to enter into any appraisement of said loss, as in said policy of insurance is provided.”
The evidence disclosed that the parties disagreed as to the amount, of the loss, and that thereupon defendant’s agent demanded an arbitration and drew up
The instructions asked by each party were based upon the theory presented by the answer that it was defendant’s duty to demand arbitration, in case of disagreement. The defendants asked that the jury be directed, that if it did so demand and that the plaintiffs refused, the finding should be for defendant. The court gave the instructions on this theory, as asked, save a proviso added, that defendant did not attach conditions to its offer of arbitration not authorized by the policy. The case was evidently tried before the cases of Murphy and McNees (supra) were promulgated. Under those cases, it was the duty of plaintiff, upon disagreement, to have offered to arbitrate ; it was a condition precedent to his right to sue. But it is apparent from the record that the case was not tried on that theory and it is a rule constantly applied by the supreme court and the courts of appeals, that the appellate courts will determine the case on the same theory on which it was presented to the trial court. From this consideration we are compelled to rule the point now made on this head, against defendant.
The second objection made by defendant is based on the fact that after the arbitration failed, plaintiffs sold the remnant of the stock without the consent of the company. No point was made on this to the trial court, unless it is to be considered as embraced in defendant’s demurrer to the evidence. But it could not properly have had the effect of destroying plaintiffs’ case, so as to justify the demurrer, from the fact that the rights of defendant under the policy, as to
The foregoing sufficiently disposes of defendant’s third point and so with the specific objections to instructions given and refused on the question of arbitration.
The next question relates to the matter of the notary’s certificate. The policy contained a provision that the plaintiffs should, “if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor, or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.” It will be noticed that this certificate is to be furnished by the assured, if required by the company. The only evidence that it was required, was that plaintiffs sent in proofs of loss and had attached thereto a certificate of a notary public. The defendant, through its agent, acknowledged receipt of the proofs and proceeded to state “exceptions and replies to said papers.” There were nine separate exceptions, or objections, the eighth
To sustain its position, defendant has cited us to the case of Aetna Ins. Co. v. People's Bank, 62 Fed. Rep. 222, a case in the United States circuit court of appeals, in which Chief Justice Fuller was sitting. The policy in that case contained a provision like the one in controversy, and the assured had voluntarily furnished, with his proofs of loss, a certificate from a notary. But in that case, the defendant, in acknowledging receipt of the pi’oofs and of the attached certificate, not only called attention to deficiencies, but requested further and more specific information as to the proofs, and closed with these words in reference to the notary’s certificate:
“Furthermore, you will please state what is the exact relationship of J. E. Watson to you, and in what other way he may or may not have been connected or associated with you in business, or other interests at the time of fire. Upon the receipt of this information, without which we can reach no conclusion as to*96 your loss, we will give the claim further consideration. We hold the papers subject to your orders.”
Thus it will be seen that while in the first instance the certificate was voluntarily furnished, the company afterward required a perfect certificate. The vital fact of requiring a certificate appears in the case cited and is lacking in the case at bar.
We have not discovered anything in the record which would justify our overturning the judgment and it is accordingly affirmed.