Hills v. Home Ins. Co.

• Decision Date: 10 September 1880
• Citation: 129 Mass. 345
• Parties: Mary S. Hills v. Home Insurance Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 345

Mary S. Hills v. Home Insurance Company

Supreme Court of Massachusetts

September 10, 1880

Argued November 21, 1879 [Syllabus Material]

Suffolk. Contract upon a policy of insurance against fire, in the sum of $ 4500, for three years from October 30, 1877 upon certain buildings in the town of Norfolk, which were destroyed by fire on September 27, 1878. Writ dated February 27, 1879, and served on March 6 following. The answer contained a general denial, and alleged that the amount of the loss by the fire had been fixed by the award of arbitrators, chosen by the parties, under the following provision in the policy: "In case differences shall arise touching any loss or damage, after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial arbitrators, whose award in writing shall be binding on the parties as to the amount of such loss or damage, but shall not determine the liability of the company under the policy." Trial in this court, before Endicott, J., who allowed a bill of exceptions in substance as follows:

On October 21, 1878, the proofs of loss having been presented to the defendant's agent, he demanded plans and specifications of the burned buildings, and requested an arbitration or appraisal of the loss, and named as arbitrator John J. Shaw. Subsequently, the plaintiff named Nelson Curtis as an arbitrator.

On December 11, 1878, the plaintiff and defendant signed an agreement in writing, by which they submitted the amount of the damage caused by the fire to the determination of Nelson Curtis and John J. Shaw, "together with a third person to be appointed by them, if necessary, their estimate or that of any two of them to be binding on both parties." Some time before January 20, 1879, the two arbitrators named agreed that John J. McNutt should act as the third arbitrator.

On January 20, 1879, Shaw went to the office of one Garbett, a surveyor and architect, who had been employed by the plaintiff to prepare plans and specifications of the building destroyed, in compliance with the demand of the defendant's agent, as before stated, and told him that the arbitrators were to meet that morning to hear the statement of Caleb S. Williams, who resided in Norfolk, and who had been notified by the agent of the defendant to be present that day, and requested Garbett to procure the attendance of Curtis at such meeting. Garbett said it was almost impossible to find Curtis at such short notice. Shaw then asked him what he should do if Curtis was not present and Garbett replied, "Go ahead, don't wait for him." Shaw testified that he did not then know whether Garbett was acting as agent of the plaintiff or not; that he knew the attorney conducting this trial very well, and knew that he then acted as the attorney of the plaintiff; that no notice was given to either party of the proposed meeting of the arbitrators, except as above stated; and that it was not customary with him, or with arbitrators generally in insurance cases, to give notice of their meetings. Garbett testified that his reply to Shaw on the morning of January 20 was, to go ahead, he had better do something; and that he, Garbett, had not acted as the agent of the plaintiff.

Williams, having received notice from the defendant's agent, on January 20 went to the agent's office, and there met Snow and Shaw, and went with Shaw to a certain place, and there met McNutt, and having been sworn as an arbitrator with Shaw and McNutt, they subscribed the following oath on the back of the original submission to the arbitrators: "We, the undersigned, do solemnly swear, that we will act with strict impartiality in making an appraisement and estimate of the actual damage to the property of Mary S. Hills, formerly Mary S. Smith, insured by the Home Insurance Company of New York, agreeably to the foregoing appointment, and that we will return to said company a true, just and conscientious appraisement and estimate of damage on the same, according to the best of our knowledge, skill and judgment." Annexed to this was the jurat of a justice of the peace. They then made an award, appraising the damage to the plaintiff's property at $ 3500, and returned it to the defendant's agent.

A copy of the submission and award, together with a copy of the paper appointing McNutt as third arbitrator, dated February 4, 1879, was sent to the plaintiff's counsel, who thereupon notified the defendant's agent that the plaintiff declined to admit the validity of the award.

On February 28,...