Abramowitz v. Continental Insurance Company
| Decision Date | 11 February 1927 |
| Docket Number | 25,695 |
| Citation | 212 N.W. 449,170 Minn. 215 |
| Parties | I. ABRAMOWITZ v. CONTINENTAL INSURANCE COMPANY; I. ABRAMOWITZ v. HARTFORD FIRE INSURANCE COMPANY |
| Court | Minnesota Supreme Court |
Defendants appealed from an order of the district court for Ramsey county, McNally, J., denying their motion for judgment notwithstanding the verdict or a new trial. Affirmed.
Standard fire policy gives insured right to appraisal.
1. Provisions of the Minnesota standard fire insurance policy (G.S. 1923, § 3512), construed and held to give insured as well as insurer the right to an appraisal.
Constitution does not prevent submission of subsequent rights to arbitration.
2. So construed, the statute is not unconstitutional. It does not result in depriving the courts of jurisdiction. There is no constitutional bar which prevents the parties to a contract from subjecting rights which may subsequently arise therefrom to arbitration.
Denial of new trial sustained.
3. Although the verdict for plaintiff seems wrong, there was no abuse of discretion in denying the motion for a new trial the verdict being the result of a second trial and having evidence to support it.
Appeal and Error, 4 C.J. p. 830 n. 45; p. 833 n. 57; p. 834 n. 60.
Arbitration and Award, 5 C.J. p. 43 n. 15; p. 56 n. 49.
Contracts, 13 C.J. p. 457 n. 16; p. 458 n. 20.
Fire Insurance, 26 C.J. p. 416 n. 93, 96 New; p. 418 n. 7 New.
Statutes, 36 Cyc. p. 1078 n. 43.
See 47 L.R.A. (N.S.) 337; 2 R.C.L. 352; 1 R.C.L. Supp. 511; 6 R.C.L. Supp. 90.
Daggett & Pew, for appellants.
Morphy, Bradford, Cummins, Cummins & Lipschultz, for respondent.
Consolidated actions on two policies of fire insurance covering household goods only. After a verdict for plaintiff, defendants appeal from the order denying their alternative motion for judgment or a new trial.
The fire occurred June 2, 1924. June 3 the insured submitted sworn statements of the loss, and plaintiff forthwith demanded an appraisal, naming Mr. W. C. Rogers as his appraiser. The adjuster for the insurers responded by admitting there was disagreement as to amount of the loss and named Mr. Thomas C. Daggett as their appraiser. Mr. Daggett, being of counsel for the insurers, very properly refused to act and at the same time advised the insured that the companies denied liability and would not participate in an appraisal. Proceeding under the standard policy hereinafter discussed, plaintiff procured the appointment of an umpire by Honorable John B. Sanborn, then one of the judges of the district court for Ramsey county. Plaintiff's appraiser and the umpire so selected, after due notice, fixed plaintiff's loss at $1,228.45. This action is on that award.
1. The first argument for the defense is that the award was invalid, the basic proposition being that under the Minnesota standard fire policy, after a repudiation of liability by the insurer, the insured has no right to an appraisal. The controlling provisions (G.S. 1923, § 3512), divided for convenience of consideration, are as follows:
This statute is the last expression of the legislative will and covers the whole subject of appraisal. It must therefore be taken as an implied repeal of G.S. 1923, § 3519. The latter is an earlier statute covering in part the same subject matter. We need not stop to examine its provisions or to inquire whether they are in conflict with § 3512, for in any event the latter must control.
Plainly the statute expresses no intention to deny the insured the right to an appraisal, even when the insurer denies liability. In fact the right of each party to demand one is recognized explicitly. Neither can it be said that the statute does not contemplate an appraisal even though one of the parties fails to select an appraiser. The adoption of that conclusion would ignore this clear language: "In case either party fails to select an appraiser within such time, the other appraiser and the umpire selected, as herein provided, may act as a board of appraisers, and whatever award they shall find shall be as binding as though the two appraisers had been chosen."
It is not permissible in construing a statute to ignore any portion of it or, unless the intention otherwise clearly appears, to say that any part of it is meaningless. The provision last quoted must be taken in connection with the rest of the paragraph. It means that in case either party fails to select an appraiser the other may have an umpire appointed in the manner provided in case two appraisers fail to agree upon one. The statute has been so amended since the decision in O'Rourke v. German Ins. Co. of Freeport, 96 Minn. 154, 104 N.W. 900, as to make inapplicable the comment there made that the statute "has no application to a case where a referee nominated by one of the parties refuses to act as such; for the court is only authorized to appoint a third referee." Since that time and by L. 1913, p. 619, c. 421, there has been put into the statute the provision for the selection of an umpire and an award even though one party does not nominate an appraiser.
2. There is nothing in the point that the construction thus adopted compels arbitration in such manner as to oust the courts of jurisdiction and thereby render the statute unconstitutional. The first consideration is that the obligation to arbitrate arises from explicit law as well as...
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