97 Mo. App. 590 | Mo. Ct. App. | 1903
— This is a snit against the defendant, a mutual fire insurance company, of which the plaintiff is a member, on a policy issued to him on November 15,1897, by which, for a valuable consideration, defendant insured him, among other property, against loss by lightning on his live stock. ' He claims that on April 26, 1900, while said policy was in force, of said live stock five head of two-year-old and two yearling cattle were killed by lightning and became a total loss; that he gave defendant timely notice of his said loss; and that defendant’s board of directors duly ascertained and determined his loss to be of the sum of two hundred and thirty-four dollars, which defendant has failed and refused to pay.
The defendant’s answer admits the contract of insurance, but denies that the animals were killed by lightning. The defendant further answered setting up a condition of the policy that: “all disputes between this company and any member thereof touching the point of liability of this company to pay any loss, or the value of property destroyed or damaged by fire or lightning, shall and must be settled by mutual agreement or by arbitration; and other proceeding in court is entirely prohibited.” And also setting out a by-law of defendant prescribing the duty of the adjuster in adjusting losses; and also providing in the event of a dispute between the assured and assurer, whether touching the question of the liability of the defendant to pay any loss, or the value of the property destroyed, for a settlement of such dispute by mutual agreement, or by arbitration; any other proceeding in court being pro
On motion of plaintiff the court struck out all that part of said answer setting up said condition of the policy and by-laws, and the action of plaintiff in applying for arbitration and his withdrawal before the hearing and award, because the same constituted no defense to plaintiff’s cause of action. The finding and judgment were for the plaintiff from all which defendant appealed.
After an examination of all the evidence we are satisfied that there was substantial testimony to show that the animals in question were killed by lightning. We will therefore give no further consideration to defendant’s contention that the verdict of the jury is not supported by the evidence.
Specific objections are made to the actions of the court in admitting improper and refusing to admit proper evidence. One C. D. Hill, a witness on behalf of the plaintiff, was asked the following question, viz.: “After examining the cattle and taking all the facts and circumstances into consideration, tell the jury how, in your opinion, these cattle came to their death?” Defendant’s objection was that the witness had not qualified as an expert. His answer was: “Well, I thought from the way this one was burnt and the way the others were bruised and the amount of thunder and lightning that night they was bound to all be knocked down by lightning.” The objection should have been sustained and the action of the court in permitting the witness to
It is also claimed that the court committed error in not permitting witness Piper to state whether or not the cattle could have gotten from the place where their carcasses were found without being carried by the water under a bridge situate between that place and where the cattle were last seen during the storm, ihe contention being that the cattle were drowned in rhe high water in the creek which was occasioned by an unprecedented fall of rain. Notwithstanding the objection was sustained, the witness did answer the question substantially by saying: “Well, I don’t know about that. ” If he did not know the fact sought to be elicited, there was no barra done and it is not material whether the question was competent or otherwise.
On the trial it.was shown that five milch cows and three yearlings were found dead, while the petition alleged that the cattle killed consisted of five head of two-year-olds and two head of yearlings. In view of
Instruction number two, authorizing the jury to allow plaintiff interest from the date of his loss, is not the law. The statute only allows interest on contracts and judgments,. See chap. 40, R. S. 1899. In this cíase, under the contract of insurance, interest would not begin to run until sixty days after adjudication; that is, after adjudication by the defendant company, and as there was no such adjudication shown in evidence, interest would not begin until the date of judgment. The verdict of the jury fixed the value of the animals at $234, and allowed him $7 interest, malting the total verdict $241. The defendant’s criticism of plaintiff’s fourth instruction is not well founded. It has been in constant use for a great while in the courts and has been often approved.
Biit defendant’s main contention is that the court erred in striking out that portion of its answer setting out a certain part of the policy and the by-laws of defendant which it pleaded in bar of the plaintiff’s right of recovery. We have indicated in the statement the parts .of defendant’s answer stricken out on plaintiff’s motion. The question is directly presented whether it is in the power of an insurance company to make contracts and by-laws whereby their liability for alleged losses of property insured are to be determined by arbitration and resort to a court of law entirely prohibited.
In McNees v. Ins. Co., 61 Mo. App. 335, it was held that, “though parties can not oust courts of their jurisdiction to try causes by providing that all matters pertaining to the cause of action shall be submitted to arbitration, yet it is well-settled law that the amount of loss or damage may be so submitted. " In Murphy v. Mercantile Co., 61 Mo. 323, it was held that, “the arbitration provision in a policy was absolute and mandatory . . . and such arbitration under the terms of the policy was a condition precedent to the defendant’s liability.” The terms of the policy in that case provided that in the event of a disagreement between the assured and the assurer as to the amount of loss or damage, the dispute should be settled by arbitration, and no suit or action for recovery on the policy should be sustainable in any court of law or equity unless such requirement for arbitration should be complied with. The ruling in the former case was expressly held not to be in conflict with that of the latter.
The case under consideration is very different wherein the provision for arbitration is not a condition precedent to defendant’s liability but is an absolute prohibition of bis right to sue either before or after arbitration. But we understand that it is concede'd that if defendant’s liability is denied in toto, that question may be settled in the courts. If the defendant’s denial at all times that plaintiff’s cattle were not killed,by lightning was not a denial of all liability under its contract, it would be hard to conceive what would amount to such a
The respondent has filed a motion to dismiss the appeal because the appellant has not complied with the law and rules of court regulating appeals, but we think there has been substantial compliance with both the law and the rules of the court in that respect, therefore said motion is overruled.
For the error noted the cause is reversed unless plaintiff: shall in ten days enter a remittitur of seven dollars allowed by the jury as interest in computing the amount of the verdict, in which case the cause will stand affirmed.
