Chapman v. Rockford Ins. Co.

• Decision Date: 05 March 1895
• Parties: CHAPMAN v. ROCKFORD INS. CO. ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 572

62 N.W. 422

CHAPMAN

v.ROCKFORD INS. CO. ET AL.

Supreme Court of Wisconsin.

March 5, 1895.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Several actions by Henry G. Chapman against the Rockford Insurance Company, the Traders' Insurance Company, the Hartford Fire Insurance Company, the American Fire Insurance Company, the Merchants' Insurance Company, the Fireman's Insurance Association of Philadelphia, and the Liverpool, London & Globe Insurance Company, to recover under fire insurance policies, are consolidated. From a judgment for plaintiff in each action, the defendant in each action appeals. Affirmed.

This action was brought to recover for loss sustained by the plaintiff under the standard insurance policy of Wisconsin, issued by the defendant on the plaintiff's stock of goods, which were wholly destroyed by fire at Oakfield, Wis., July 6, 1893, and claimed to be of the value of $13,465.12. The plaintiff held policies with six other companies, upon the same goods, for various amounts, namely, Traders' Insurance Company, Hartford Fire Insurance Company, American Fire Insurance Company, Merchants' Insurance Company, Fireman's Insurance Association of Philadelphia, Liverpool, London & Globe Insurance Company, such insurance amounting in all to $10,000. Actions were brought on each of the policies, October 8, 1893. It appeared that the plaintiff gave due notice of his loss, and proofs thereof were made and submitted to the respective companies, July 24, 1893, to which no objections have been made. By the terms of each of the policies it was provided that, “in the event of disagreement as to the amount of the loss, the same shall * * * 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 the loss; * * * and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proofs of the loss herein required have been received by this company, including an award by appraisers, when appraisal has been required.” It was charged in the complaint that the companies conspired together to obtain an unjust and unwarranted rebate of the plaintiff's loss, and on the 8th of August, 1893, demanded the right of appraisement of the goods destroyed, under the arbitration clauses in the policies, the validity of which the plaintiff denied; that on that day a written submission was executed for that purpose, each party selecting an appraiser, the insurer selecting a resident of Chicago, unacquainted with the value of the goods and the market and trade in the vicinage of the fire, namely, at Oakfield, Fond du Lac county, Wis.; that an effort was made by the appraiser selected by the plaintiff to select an umpire, but the appraiser selected on the part of the companies refused to select an umpire, and to enter upon an appraisement, until he could ascertain the wishes of the companies, and on the next day left Fond du Lac, and returned to Chicago, and had never since returned to the vicinage of the fire or to the state, and that all attempts thereafter to obtain the selection of an umpire had proved fruitless, by the refusal of the said appraiser for the companies to agree upon a proper and competent umpire, and would thereafter fail, unless the plaintiff would consent to an unjust rebate and compromise; that said appraiser appointed by the companies was wholly subservient to their wishes and interests, and had been selected to carry out the conspiracy of the companies by so refusing to appoint an umpire; that, having failed to get an umpire appointed, the plaintiff gave notice to the companies of revocation of the submission of August 8th, and that by reason of the premises the companies had waived the benefit of said arbitration clause and submission. The defendant companies, respectively, each answered, in the actions against it, in substance setting up, by way of plea in abatement, the said arbitration clause, and the submission under it to arbitrate, of August 8th, to wit, the selection of George Ferris and G. W. Weber as appraisers, and that they had taken and subscribed the proper oath, and that they were not able to agree upon the amount of loss or damage, and that no umpire had been chosen; that the amount of loss due the plaintiff had never been ascertained, proposed, or awarded or returned under the respective policies; that said arbitration proceedings were valid, in full force, and undetermined when each of the actions was brought, and that, therefore, they were each premature; that said stipulation and submission had not been waived, and nothing was due the plaintiff under the terms of the respective policies. The actions were all tried before the court at the same time, and submitted on the same evidence. The court found in each case, in substance, among other things: (1) That the demand for an appraisement was not made in good faith, because of any real and substantial difference between the respective companies and the plaintiff, but to prolong and postpone the adjustment and payment of plaintiff's loss, and to coerce him to make rebate from his claim, which could not otherwise be obtained. (2) That the defendants, respectively, through their appraiser, and with their approval, wantonly and unreasonably suspended the plaintiff's claim, and refused and neglected to appraise the loss, or make any attempt to do so, but hung the same up indefinitely, to prolong and postpone the adjustment and payment of the plaintiff's loss and damages until he should be coerced into allowing an unjust rebate. (3) That no action was taken by the companies, respectively, within 60 days after receiving proofs of the plaintiff's loss, nor prior to the commencement of the actions, tending towards an appraisement and adjustment of plaintiff's loss, by arbitration or otherwise, or showing any purpose or intent to do so; that the plaintiff for that reason, October 3, 1893, revoked the agreement to arbitrate, signed August 8, 1893, and gave notice thereof to the respective companies before bringing the actions. (4) That the cash value of the plaintiff's property covered by the policies at the time of the fire was $13,465.12. Judgment was given against each of the defendants for the amount of its policy, with interest from the date of the action, and each of them appealed from the judgment against it, and the appeals were heard together upon the same record.

Barbers & Beglinger, for appellants.

Duffy & McCrory and E. S. Bragg, for respondent.

PINNEY, J. (after stating the facts).

1. These appeals involve questions of considerable importance in respect to the construction and effect to be given to the appraisal clause in the standard policies now in use in this state. The policies in question provide that loss or damage shall be ascertained or estimated by the assured and the company, or, in case of difference between them, then by appraisers as therein provided,and that “the loss shall not become due and payable until sixty days * * * after an award by appraisers, when appraisal has been required.” This provision furnishes a speedy, convenient, and inexpensive mode of ascertaining the loss or damages of the assured, if he is entitled to recover, and does not appear to be obnoxious to the objection that it is void as ousting the courts of their rightful jurisdiction. Under it the right of recovery is left open, and the appraisal serves only to liquidate and determine the amount of the loss or damage. The validity of such stipulations appears to be beyond doubt. We think that the question is perfectly well settled, and that it has been so considered ever since the case of Scott v. Avery, 5 H. L. Cas. 811; and that when parties to a contract agree that money shall be paid when something else happens, and that something else is that a third person named in it, or persons to be named as therein provided, shall determine the amount, then the cause of action does not arise until the amount has been so ascertained or determined, unless something has occurred which may operate as a waiver of such precedent condition, or to dispense with its performance, or that with fair and reasonable effort performance of it cannot be obtained. The rule is stated by Jessel, M. R., in Dawson v. Fitzgerald, 1 Exch. Div. 257, 260, in brief, to be this: “There are two cases where such a plea as the present is successful: First, where the action can only be brought for the sum named by the arbitrator; secondly, where it is agreed that no action shall be brought until there has been an arbitration, or that the arbitration shall be a condition precedent to the right of action. In all other cases where there is--First, a covenant to pay; and, secondly, a covenant to refer,--the covenants are distinct and collateral, and the plaintiff may sue on the first, leaving the defendant to bring an action for not referring,” etc. Here the covenant to pay is, by necessary implication, conditioned upon the appraisal, if properly claimed, and the plaintiff is in no position to claim anything until an appraisal has been made, waived, or in some manner legally dispensed with. Elliott v. Assurance Co., L. R. 2 Exch. 240. The questions to be considered are “whether an arbitration or award is necessary before a complete cause of action arises, or is made a condition precedent to an action, or whether the agreement to refer disputes is a collateral and independent one.” Collins v. Locke, 4 App. Cas. 689; Edwards v. Insurance ...