Caledonia Fire Ins. Co. v. Traub

Decision Date23 June 1897
Citation37 A. 782,86 Md. 86
PartiesCALEDONIA FIRE INS. CO. OF SCOTLAND v. TRAUB ET AL.
CourtMaryland Court of Appeals

Appeal from circuit court, Carroll county.

Action by Julius Traub & Bro. against the Caledonia Fire Insurance Company of Scotland. Judgment for plaintiffs. Defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, PAGE, and BOYD, JJ.

James Hewes, Chas. T. Reifsnider, and Chas. T. Reifsnider, Jr., for appellant.

Clabaugh & Roberts and Benj. Rosenheim, for appellees.

McSHERRY C.J.

For the third time the pending case has been brought to this court. The other appeals are reported in 80 Md. 214, 30 A. 904, and in 83 Md. 524, 35 A. 13. Each time the insurance company has been the appellant, and each time the company has contested and assailed a judgment entered upon a verdict rendered against it by a different jury for substantially the same amount of money. On the former appeals the law of the case was fully discussed and finally settled, and there are but few new questions presented for decision now. The suit was instituted upon a policy of insurance against loss by fire. The appellant company is the underwriter and the appellees are the insured. The stipulations contained in and indorsed upon the policy are, as is generally the case, quite numerous; but it will not be necessary, in considering the questions now involved, to set forth any of these provisions at length; and, as two of them alone are invoked as defenses to the action, their legal effect, rather than their exact phraseology, is all that need be stated. The ordinary requirement that the insured shall within 60 days after the happening of a loss by fire furnish the insurer with the formal proof of loss, and the other equally usual stipulation enjoining that, in the event of a loss occurring, and in the event of a disagreement arising between the insurer and the insured respecting the amount of that loss, the controversy should be submitted to arbitrators and an umpire whose finding, or a finding by a majority of whom, should be conclusive upon the parties, are the only provisions with which we are at all concerned. It is not disputed that a fire happened during the period covered by the policy sued on, and that a part of the stock in trade owned by the appellees and insured under the policy was damaged, and a part was entirely destroyed. Notice of the fire was at once given by the appellees to the agent of the appellant, though no formal proof of loss was then or ever afterwards furnished. The appellant's adjuster, however, in a few days, visited the scene of the fire, took possession of the premises, held control thereof for 19 days, and instructed the appellees to make up an inventory of their stock, showing the amount thereof lost and the amount damaged. The adjuster participated in this work, and upon its completion, and without exacting from the appellees the proof of loss required by the policy, offered to settle the appellees' claim for indemnity under the policy by the payment of $816 insisting that that sum fully reimbursed the insured the amount of their loss by the fire. The appellees promptly refused to accept that offer, and, the adjuster being unwilling to pay more, demanded that an arbitration under the second of the two stipulations referred to in the beginning of this opinion should be entered into. Accordingly the appellees and the appellant each selected an arbitrator, and the two arbitrators chose an umpire, and the three then proceeded to make up an inventory and appraisement of the loss and damage. They met on May 4, 1893, and on subsequent days, and the two arbitrators, seemingly without much difficulty, agreed upon valuations of the goods not totally destroyed, but were widely separated in their estimates respecting the property wholly burned, or, as it is described in the record, "out of sight." Whether they had so far disagreed as to authorize the umpire to decide and determine between them is one of the controverted questions of fact. On the 9th of May, Rosenfield, the arbitrator selected by the appellees, notified the other arbitrator and the umpire that he would not be able to be present or participate in the valuations the next day in consequence of business engagements elsewhere; and when, on the 10th, he learned that the other arbitrator and the umpire had gone back to the scene of the fire, presumably to complete the valuation, he sent a telegram suggesting that they proceed no further until they could communicate with Reinhart, who was acting as the friend and adviser of the appellees. Notwithstanding the absence of Rosenfield, Burnbacker, the other arbitrator, and Baetjer, the umpire, went on with the valuation, and on the following day--the 11th--the umpire gave his decision with respect to the goods "not in sight," and he and Burnbacker signed an award fixing the amount of the loss at $1,043.08; but Rosenfield refused to unite therein. Acting upon the assumption that the award was invalid, and that it was invalid because the two arbitrators had not so far finally disagreed as to allow the umpire to determine between them the value of the goods totally destroyed, the appellees brought the pending suit, claiming that there was due to them a sum largely in excess of the amount named in the alleged award, and the appellant denied any liability beyond that sum.

The present record contains four bills of exception. The first relates to a ruling of the trial court refusing to remove the case to some other court for trial; the second has reference to the admissibility of evidence; the third brings up the rulings on the prayers for instructions to the jury; and the fourth was taken to the refusal of the court to submit to the jury certain interrogatories to be passed on by them.

If the question raised in the first exception involved merely a naked refusal on the part of the circuit court to transmit upon the formal application of the appellant, the record of proceedings to some other court, for the trial of the cause in the latter tribunal, the judgment appealed from would necessarily have to be reversed. The right of a party in a civil cause, upon suggestion in writing, supported by affidavit that he cannot secure a fair and impartial trial in the court where the action is pending, to have the record transmitted to some other court, is secured by section 8 art. 4, of the constitution of Maryland. But the right thus given is not one that cannot be surrendered. It is a right which a party may or may not avail of or assert, precisely as the right to a trial by jury in civil proceedings where the amount in controversy exceeds five dollars, though guarantied by section 6, art. 15, of the constitution, may, by agreement, be relinquished. Both are rights accorded by the organic law to suitors, but suitors are under no compulsion to assert or to insist on either; and consequently parties may voluntarily waive the one or the other or both, if they elect to do so. Now, we find in the record that a written agreement dated May 20, 1895, was filed in the cause, stipulating, in consideration of the appellees forbearing to press the case to trial at that time, that the case should be tried in the circuit court for Carroll county if tried at all, and expressly waiving the right of removal. This paper was signed by the attorneys for the appellant and by its agent or adjuster. The appellees performed their part of the agreement, and did not press for a new trial, but permitted the case to go over. Subsequently,-- that is, on the 16th day of November, 1896,--long after the appellant had secured the benefit of the postponement which it sought under the agreement of May, 1895, it made application to remove the case, and filed an affidavit dated October 13, 1896. This motion for a removal was at once denied, but no exception was taken or reserved. On the 11th of February, 1897, the appellant obtained leave to withdraw from the files this affidavit of October 13, 1896. Immediately thereafter the same affidavit was refiled as of February 11th, and the circuit court again refused to remove the case to another jurisdiction, and this last refusal is the error complained of in the first bill of exceptions. We discover no error in this action of the court.

The right of removal was not given to be used for the purpose of defeating the ends of justice, but with a view to promote and subserve them. It is difficult to escape the conviction that prior to the execution of the agreement of May, 1895, an application for a removal was about to be made by the appellant merely to avoid being forced into a trial when notprepared to proceed; and so, when the agreement not to press for trial was signed, the appellant not only forbore to make a motion for a removal, but distinctly and unequivocally stipulated not to remove the case at all. The agreement of May, 1895, was not only a promise that the application should not be made during the May term of 1895, but obviously and in terms it had relation to the future as well. The attempt to have the case removed in February, 1897, on the strength of the affidavit used unsuccessfully the preceding November, was on its...

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