Exceptions from Superior Court, Providence and Bristol Counties; Christopher M. Lee, Judge.
JOHNSON, J. This case is before the court on exception to the decision of the superior court sustaining the defendant's demurrer to plaintiff's amended declaration. The action was upon a policy of fire insurance which contained the following provisions:
"This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice
within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described. * * *
"In the event of disagreement as to the amount of loss the same shall, as above provided, 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 such loss. * * *
"This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.
"No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire."
The plaintiff avers that the goods and chattels mentioned in said policy and insured thereby were lost, damaged, and destroyed by fire on, to wit, the —— day of November, 1904, to the value of $5,000, and at the time of the loss to the plaintiff thereby said policy and contract of insurance was subsisting and was in full force. "And the plaintiff avers that after said fire there was a disagreement between the plaintiff and defendant as to the amount of loss, and two appraisers were selected to ascertain the amount of such loss, the plaintiff and defendant each selecting one of said appraisers, and the two so chosen selected an umpire, and the appraiserstogether then estimated and appraised the loss as provided in said policy as respects a portion of the insured property damaged by said fire, and, failing to agree as to whether certain property damaged and destroyed by said fire was included in the property insured by said policy, submitted their differences to the said umpire, and that said umpire wrongfully and erroneously decided that said disputed property was not covered and insured by said policy; that said decision of the umpire was procured and induced by the positive assurance of the appraiser selected by the defendant that the disputed property was not covered by the policy and was not insured thereby; that said assurance of the appraiser selected by the defendant and the concurring decision therewith of the umpire was finally and wrongfully and erroneously accepted by the appraiser selected by the plaintiff, and an award was made in writing by the appraisers and umpire determining the amount of the loss; that said amount was wrong and erroneous in this, that it excluded from appraisal and ascertainment all loss on the said certain property as to said dispute and disagreement arose as to whether it was covered and insured by the said policy. And the plaintiff avers that the said property so wrongfully excluded consisted of the following (setting them out), all of great value, at the time of said fire, to wit, of the value of $3.000; that said excluded goods and chattels were all destroyed by said fire; that all said goods and chattels were covered and insured by said policy. And the plaintiff avers that, although he accepted the damages awarded in and by said award as the amount of his loss on the property appraised by said appraisers and included in said award, he is entitled to damages for the value of the said property insured by said policy and damaged and destroyed by said fire and wrongfully excluded from said appraisal and award, and he claims for the same under said policy. And the plaintiff avers that the appraiser selected by the defendant as aforesaid and the said umpire were not competent and disinterested. And the plaintiff avers that said appraisers and umpire exceeded their authority in the aforesaid arbitration, in that they undertook to decide as to whether the defendant was liable at all under said policy for the damage or destruction of certain property aforesaid (meaning the property in said list) damaged and destroyed by said fire. And the plaintiff avers that this action was not commenced until after full compliance by the plaintiff with all the requirements of said policy, and that it was commenced within 12 months next after said fire."
The defendant demurred on the following grounds: "(1) It appears therefrom that an award was made under the provisions of the policy sued upon, and said award was accepted and retained by the plaintiff. (2) It does not appear therefrom that the award made under the provisions of the policy sued upon was on its face other than a proper and just award. (3) From all that appears from said declaration the said award showed on its face that the appraisal covered all of the goods destroyed. (4) It does not appear that the alleged wrongfulness and erroneousness of the award in failing to include certain alleged items of damage was due to any fraud, partiality, or misconduct on the part of the arbitrators and umpire, as distinct from an erroneous judgment upon a full and clear consideration of all the facts. (5) It does not allege that the alleged wrongfulness and erroneousness of the award in failing to include certain items of damage was due to any assumption of fact as...
