Fowble v. Phoenix Insurance Co.

Decision Date16 May 1904
Citation81 S.W. 485,106 Mo.App. 527
PartiesS. J. FOWBLE, Appellant, v. THE PHOENIX INSURANCE CO., Respondent
CourtKansas Court of Appeals

Appeal from Cedar Circuit Court.--Hon. H. C. Timmonds, Judge.

Judgment reversed and cause remanded.

M. T January and R. W. Bannister for appellant.

(1) The insurance company and the insured must proceed in good faith with an agreement for arbitration and it is for the jury to decide the question and not the court. Uhrig v. Ins Co., 101 N.Y. 361. (2) The mere fact that an attempted arbitration has not been completed is no bar to an action on the policy. McCullough v. Ins. Co., 113 Mo. 606; Brock v. Ins. Co., 26 L. R. A. 623; Ins. Co. v Bishop, 154 Ill. 9. (3) The umpire should be chosen from the vicinity of the loss. Brock v. Ins. Co., 26 L. R. A. 623; Chapman v. Ins. Co., 28 L. R. A. 405; Hickerson & Co. v. Ins. Co., 32 L. R. A. 172. (4) There was evidence tending to prove that the appraiser appointed by the company was not "disinterested," within the meaning of the language of the policy. That question should have been submitted to the jury under appropriate instructions. Brock v. Ins. Co., 26 L. R. A. 623.

Fyke Bros., Snider & Richardson for respondent.

(1) It seems to us a waste of time to discuss the question whether or not there was a disagreement between the parties as to the amount of loss. Plaintiff wanted at least $ 1,000. Defendant contended that her loss did not exceed $ 200. Dautel v. Ins. Co., 65 Mo.App. 50. (2) A disagreement having arisen, it was incumbent on plaintiff to demand an appraisal, and until such appraisal was had, unless waived, no action could be maintained. Murphy v. Ins. Co., 61 Mo.App. 323. (3) If the appraisers without fault of the parties failed to agree, though captiously and arbitrarily, it was the duty of plaintiff to use reasonable effort, at least to suggest to defendant that other appraisers be selected. Swearinger v. Ins. Co., 66 Mo.App. 90; McNees v. Ins. Co., 69 Mo.App. 232; Hooker v. Ins. Co., 69 Mo.App. 141; Ins. Co. v. Maitten, 63 N.E. 755; Davenport v. Ins. Co., 10 Daly 535; Altman v. Altman, 5 Daly 436; Ins. Co. v. Frank, 35 Alt. (Md.) 436; Carroll v. Ins. Co., 13 P. 863; Levine v. Ins. Co., 68 N.W. 855. (4) It is the policy of the law to encourage these adjustments without an appeal to the courts. Zallee v. Ins. Co., 44 Mo. 532. (5) There is nothing in the record to show that Mr. Potts was any more stubborn than Mr. Schmidt.

OPINION

ELLISON, J.

This is an action on a fire insurance policy. The policy contained the following arbitration clause:

"In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers; the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraisers respectively selected by them and shall bear equally the expense of the appraisal and umpire."

At the close of the evidence the trial court concluding that plaintiff had not complied with that provision, determined that the suit had been prematurely brought and gave a peremptory instruction to the jury to find for the defendant.

Plaintiff's first point is that the parties had not disagreed as to the amount of the loss and hence there was no necessity for arbitration. We think the point not well made. The parties are concluded on that score by their action, in writing, whereby they stated their disagreement and each selected one arbitrator. This was fully as much evidence of disagreement as should be asked. It was much more than appeared in Dautel v. Ins. Co., 65 Mo.App. 44; Murphy v. Ins. Co., 61 Mo.App. 323; Brock v. Ins. Co., 102 Mich. 583, 61 N.W. 67.

The difficulty between the parties arises over their attempted agreement over an umpire as provided by the policy. Their endeavor covered quite a period of time and involved much correspondence, taken part in by plaintiff's husband, her attorney and the arbitrator selected by her upon one side, and defendant's adjuster and the arbitrator which he selected, upon the other side. There was evidence tending to show that the mistake made by the arbitrators selected in their attempt to select a third was that, each showed himself too much a partisan and too little an arbitrator. In other words, each showed himself, in some degree, too loyal to the cause of the side which selected him, in apparently wanting an advantage. Their duty was to find the true amount of the loss, without reference to exaggerated appreciation upon one side, or depreciation upon the other. The mistake made by the court, in the condition of the evidence, was in declaring, as a matter of law, that the failure to arbitrate was the fault of the plaintiff. As the case stood when the demurrer was given, to hold that the plaintiff was at fault in the failure of arbitration was tantamount to holding as a matter of law that she was to blame for the failure to agree upon an umpire; for it was the failure of that effort which prevented an arbitration. The law is well-settled that if the failure to arbitrate arises from the fault of the insurer, arbitration is not a necessary prerequisite of a right to sue. McCullough v. Ins. Co., 113 Mo. 606, 21 S.W. 207; Niagara Ins. Co. v. Bishop, 154 Ill. 9, 39 N.E. 1102.

We have gone over the evidence and find that it is not conclusive of the claim of either disputant. So it became an issue for the jury and as such it should have been submitted along with whatever other issues there may be in the case. Uhrig v. Ins. Co., 101 N.Y. 362, 4 N.E. 745; Bishop v. Ins. Co., 130 N.Y. 488, 29 N.E. 844; Caledonian Ins. Co. v. Traub, 83...

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