Conn. Fire Ins. Co. v. O'Fallon

• Decision Date: 02 December 1896
• Parties: CONNECTICUT FIRE INS. CO. v. O'FALLON.
• Court: Nebraska Supreme Court

49 Neb. 740

69 N.W. 118

CONNECTICUT FIRE INS. CO.

v.O'FALLON.

Supreme Court of Nebraska.

Dec. 2, 1896.

Syllabus by the Court.

1. An award, whether at common law or under the statute, when regularly made and published, is, in the absence of fraud or mistake, prima facie binding upon the parties thereto; and the burden of alleging and proving the contrary is upon the party seeking to impeach it.

2. Evidence tending to impeach an award actually made and published in accordance with the agreement of submission is inadmissible under a general denial.

3. The right to revoke a submission to arbitration at common law must be exercised before the making and publication of the award; otherwise, it will be considered as waived.

Error to district court, Otoe county; Chapman, Judge.

Action by William O'Fallon against the Connecticut Fire Insurance Company. From a judgment for plaintiff, defendant brings error. Reversed.

Chas. Offutt, for plaintiff in error.

Edwin F. Warren and John C. Watson, for defendant in error.

POST, C. J.

The defendant in error (hereafter referred to as the “plaintiff”) recovered judgment in the district court for Otoe county against the Connecticut Fire Insurance Company (hereafter called the “defendant”) upon a certain policy of insurance covering a dwelling house situated in said county, together with the furniture and wearing apparel of the insured, and which is presented for review by means of a petition in error addressed to this court. Of the numerous assignments of error, we shall notice a single one, viz. that the verdict and judgment are not sustained by sufficient evidence. In the policy, which is set out in the petition, is found the following: “(7) * * * Loss or damage to property partially or totally destroyed, unless the amount of said loss or damage is agreed upon between the assured and the company, shall be appraised by disinterested and competent persons, one to be selected by the company, and one by the assured, and, where either party demand it, the two so chosen may select an umpire to act with them in case of disagreement; and, if the said appraisers fail to agree, they shall refer the differences to such umpire, each party to pay their own appraisers and one-half of the umpires' fees; and the award of any two in writing shall be binding and conclusive as to the amount of such loss or damage.” The petition, which is otherwise in the usual form, contains an allegation that, subsequent to the loss charged, the defendant's agent and adjuster agreed to supply the plaintiff with blank forms to be used in making the proof of damage contemplated by the policy, and that afterwards, “during the month of July, the said agent and adjuster submitted to said plaintiff what they claimed were proofs of loss of said fire; that plaintiff, relying upon this said statement, signed the alleged proof of loss by mark, said plaintiff not being able to write or read writing, but that plaintiff afterwards learned that the paper he had signed, supposing it to be a proof of loss, was an agreement to have said property appraised as provided in section 7 of said policy; that, said plaintiff afterwards learning that said paper signed by him was the instrument stated, to wit, as required by section 7 of said policy, he immediately notified said company of his ignorance of the nature of the instrument signed by him, and that he would not stand to or be bound by such instrument.” The defendant company, after a denial, which puts in issue the foregoing allegations, charges that on the 14th day of July, 1892, in consequence of a disagreement respecting the amount of the plaintiff's damage, it was in writing agreed that all questions of difference between the parties should be submitted to arbitrators therein named, whose finding and decision should be conclusive upon the respective parties. The agreement aforesaid, which is set out at length, is specific in all of its provisions, and is prima facie a valid, common-law submission. Tynan v. Tate, 3 Neb. 388;Greer v. Canfield, 38 Neb. 169, 56 N. W. 883. It appears further from the answer that the arbitrators thus mutually chosen were on the 18th day of July sworn to faithfully and impartially discharge their duties as such, in accordance with the terms of the written submission; and that, on the 29th day of July, said appraisers, pursuant to the authority conferred upon them by their said appointment, made and published their finding and decision as follows: “To the parties in interest: We, H. Wales and Louis Prue, the appraisers named in the foregoing agreement, having estimated and carefully appraised at its true cash value the sound value and the direct or immediate damage caused by fire which occurred on the 30th day of June, A. D. 1892, to the property...