Connecticut Fire Insurance Co., of Hartford v. O'Fallon

• Citation: 69 N.W. 118,49 Neb. 740
• Decision Date: 02 December 1896
• Docket Number: 6719
• Parties: CONNECTICUT FIRE INSURANCE COMPANY OF HARTFORD v. WILLIAM O'FALLON
• Court: Supreme Court of Nebraska

69 N.W. 118

49 Neb. 740

CONNECTICUT FIRE INSURANCE COMPANY OF HARTFORD v. WILLIAM O'FALLON

No. 6719

Supreme Court of Nebraska

December 2, 1896

ERROR from the district court of Otoe county. Tried below before CHAPMAN, J.

REVERSED.

Charles Offutt and Charles S. Lobingier, for plaintiff in error.

References as to the validity of the arbitration clause and the conclusiveness of the award: Scott v. Avery, 5 H. L. Cas. [Eng.] 811; Viney v. Bignold, 20 Q. B. Div. [Eng.] 172; Wolff v. Liverpool & London & Globe Ins Co. 21 Vroom [N.J.] 453; Hall v. Norwalk Fire Ins Co. 57 Conn. 105-114; Adams v. South British Ins Co. 70 Cal. 198; Carroll v. Girard Fire Ins. Co. 72 Cal. 297; Gauche v. London & Lancashire Ins. Co. 10 F. 347, 4 Woods [U.S.C.C.] 102; Hamilton v. Liverpool, London & Globe Ins. Co. 136 U.S. 242; Tynan v. Tate, 3 Neb. 388; McDowell v. Thomas, 4 Neb. 542; Boston Water Power Co. v. Gray, 6 Met. [Mass.] 131; Pierce v. Empire Ins. Co. 62 Barb. [N.Y.] 636; Mutual Hail Ins. Co. v. Wilde, 8 Neb. 427.

Edwin F. Warren and John C. Watson, contra.

In an argument in reply to the contention that defendant in error was bound by an arbitration and award, reference was made to the following cases: Thompson v. St. Louis Ins. Co. 43 Wis. 459; Thompson v. Citizens Ins. Co. 45 Wis. 388; German Ins. Co. of Freeport v. Eddy, 36 Neb. 461; Bartlett v. Union Mutual Fire Ins. Co. 46 Me. 500; Reichards v. Manhattan Life Ins. Co. 31 Mo. 518; Amesburg v. Bowditch Mutual Fire Ins. Co. 6 Gray [Mass.] 596; Indiana Mutual Fire Ins. Co. v. Routledge, 7 Ind. 25; Wall v. Equitable Life Assurance Society, 32 F. 273; Nute v. Hamilton Mutual Ins. Co. 6 Gray [Mass.] 174; Vore v. Hawkeye Ins. Co. 41 N.W. 309 [Iowa]; Day v. Dwelling-House Ins. Co. 16 A. 894 [Me.]; Reiner v. Dwelling-House Ins. Co. 42 N.W. 208 [Wis.]; Sly v. Ottawa Agricultural Ins. Co. 29 U. C. C. P. 28; Goring v. London Mutual Fire Ins. Co. 11 Ont. [Can.] 82; Sauvey v. Isolated Risk & Farmers Fire Ins. Co. 44 U. C. Q. B. 23; Birmingham Fire Ins. Co. v. Pulver, 18 N.E. 804 [Ill.]; Gere v. Council Bluffs Ins. Co. 67 Iowa 272; Reed v. Washington Fire & Marine Ins. Co. 138 Mass. 572; Williams v. Hartford Fire Ins. Co. 54 Cal. 442; German-American Ins. Co. v. Steiger, 109 Ill. 254; Mark v. National Fire Ins. Co. 24 Hun [N.Y.] 565; Canfield v. Watertown Fire Ins. Co. 55 Wis. 419; Liverpool & London & Globe Ins. Co. v. Creighton, 51 Ga. 95; Schollenberger v. Phoenix Ins. Co. 7 Ins. L. J. [Pa.] 697; Case v. Manufacturers' Fire & Marine Ins. Co. 21 P. 843 [Cal.]; Crossley v. Connecticut Fire Ins. Co. 27 F. 30; Lasher v. Northwestern National Ins. Co. 18 Hun [N.Y.] 98; Mentz v. Armenia Fire Ins. Co. 79 Pa. 478; Trott v. City Ins. Co. 1 Cliff. [U.S.C.C.] 439; Cobb v. New England Mutual Marine Ins. Co. 6 Gray [Mass.] 193; Stephenson v. Piscataqua Fire & Marine Ins. Co. 54 Me. 55; Allegre v. Maryland Ins. Co. 2 G. & J. [Md.] 136; Rosenwald v. Phenix Ins. Co. 3 N.Y.S. 215; Nurney v. Fireman's Fund Ins. Co. 30 N.W. 350 [Mich.]; Phoenix Ins. Co. v. Badger, 53 Wis. 283; Millandon v. Atlantic Ins. Co. 8 La. 561.

OPINION

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 umpire's 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 their said statement, signed the alleged proof of loss by mark, said plaintiff not being able to write or read writing, but that plaintiff afterward 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 afterward learning that said paper signed by him was the instrument stated, towit, 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 described in the foregoing agreement, and having taken into consideration the age, condition, and location of said property previous to the fire, and also the value of the walls, materials, and any portion of the building saved, and after making an estimate of the cost of replacing said building and making proper deductions for depreciation and other causes, in accordance with the stipulations of the foregoing agreement, do hereby, under oath, find, determine, and award the sum of six hundred and ninety-one and 4-100 dollars as the amount of said damage to the property therein described, and more particularly described as follows: $ 691.04, on

"Witness our hands and seals at Nebraska City, Nebraska, this 29th day of July, A. D. 1892.

"HARRY WALES. [SEAL.]

"LOUIS PRUE. [SEAL.]"

It is by the defendant further alleged that it has at all times since the date of said award been ready and willing to pay the same, and has tendered to the plaintiff the full amount thereof, which, upon the refusal of the latter, is brought into court for his use and benefit, in order that said tender may be kept good. The reply is a general denial. It should in this connection be observed that no reference is made by counsel to the statement of the petition respecting plaintiff's agreement to arbitrate and his alleged subsequent revocation thereof; but that allegation cannot at this time be regarded as material, since the vital issue is...