Friezen v. Allemania Fire Ins. Co.

• Decision Date: 01 January 1887
• Citation: 30 F. 352
• Parties: FRIEZEN v. ALLEMANIA FIRE INS. CO.
• Court: U.S. District Court — Western District of Wisconsin

30 F. 352

FRIEZEN v. ALLEMANIA FIRE INS. CO.

United States Circuit Court, W.D. Wisconsin.

1887

H. W Clynoweth, for plaintiff.

Stevens & Morris, for defendant.

BUNN J.

This is an action brought to recover a loss under a policy of insurance against fire issued by the defendant company to one C. Friezen, and afterwards duly assigned to the plaintiff. A jury was waived by the parties in writing, and the case tried before the court. The facts are stipulated, and are as follows: The insurance company have had an agent in Wisconsin, located at Milwaukee, since 1880. The policy was duly issued by the defendant company on April 8, 1885, by which they insured the said C. Friezen against loss by fire upon his two-story frame hotel building and addition, situate in Glyndon, Minnesota, and the furniture therein, in the sum of $1,200. Eight hundred dollars of this was upon the building and four hundred upon the furniture therein, beds, bedding, etc. On June 23, 1885, the building and furniture insured were accidentally and by misfortune totally destroyed by fire. The insured immediately upon the happening of the fire, gave notice thereof to the company, and as soon as possible, to-wit, on thirty-first July, made the rendered to the defendant proofs of the loss, amounting to $1,098.30. The plaintiff, upon assignment of the policy and cause of action to her, demanded payment, but the company declined to pay. On the tenth of September, 1885, the defendant company, through its agent at Chicago, demanded of the insured that he submit to an examination under oath touching the loss, and insisted that the company had the right to have such examination take place at their office at Pittsburgh, Pennsylvania, but offered to allow the insured to be examined at their office in Chicago. The insured offered to submit to examination at his home in Glyndon, or at any point in Minnesota at a reasonable distance from his home. They could not agree upon the place for examination and afterwards, in February, there was some move to arbitrate the question; the insured offering and demanding that it be arbitrated, and setting a day for such purpose, and notifying the defendant company. But no arbitration or examination was ever had. There was a chattel mortgage for $1,100 executed by the assured on March 18 1885, upon the furniture of the hotel, and which was still subsisting at the time the policy was issued; and after the issuance of the policy, on June 17, 1885, Friezen executed a second mortgage upon a portion of the property, to-wit, the pool-table and some other articles of saloon furniture, to secure the sum of $115. There was no delivery or change of possession of the property under either mortgage, and nothing to show when either of them was to become due.

The defendant makes three defenses to the action: (1) That the court has no jurisdiction of the subject-matter of the action, or of the defendant corporation; (2) that the action is barred by the six-months limitation provided for in the policy for bringing the action; (3) that the plaintiff is barred from recovering on account of the two mortgages upon the personal property on which $400 of the insurance was placed.

This case was before the court on a former occasion upon demurrer, when the same questions as to jurisdiction of the court were relief upon and decided, and it was then held that, as the action was transitory in its nature, it was not necessary to bring suit in Minnesota, where the property was situate; and that, as the summons was served upon the company's agent in Wisconsin, and the company, by its attorneys, had put in a general appearance in the action, and taken steps to remove the case into this court, that the court had acquired jurisdiction of the case and of the person of the defendant. I see no reason for changing the ruling then made. See ante, 349.

Bearing upon the other defenses above named, are the following provisions in the printed portions of the policy:

'(1) The assured hereby covenants and agrees that any application, plan, survey, or description referred to in this policy is true, and shall be and form part of this policy, and a warranty by the assured that no fact material to the risk, or relating to its condition, situation, or occupancy, has been concealed nor misrepresented, and that the interest of the assured therein has been truly stated to this company; it being understood, unless otherwise expressed in this policy, that the interest of the assured is the entire, unconditional, and sole ownership of the property, and that all buildings intended to be insured by this policy stand on ground owned in fee-simple by the assured.

'This policy shall become void and of no effect by the sale or transfer, or any change in title or possession, of the property insured, whether by legal process or judicial decree, or voluntary transfer or conveyance.

'The amount of sound value and of the loss or damage shall be determined by agreement between the company and the assured; but if at any time differences shall arise as to the amount of any loss or damage, or as to any question, matter, or thing, (except the validity of the contract, or the liability of the company,) concerning or arising out of this insurance, every such difference shall, at the request of either party, be submitted, at equal expense of the parties, to competent and impartial persons, one to be chosen by each party, and the two so chosen shall select an umpire to act with them in case of their disagreement; and, until such an appraisement is held, the loss shall not be payable, and the award in writing of any two of them shall be binding and conclusive as to the amount of such loss or damage, or as to any question, matter, or thing so submitted.

'The assured shall, whenever required, submit to examination under oath by any person appointed by this company, and subscribe to such examination when reduced to writing, and shall also, as often as required, produce their books of account and other vouchers, or certified copies thereof, and exhibit the same for examination at the office of this company, in the city of Pittsburgh, and permit extracts and copies thereof to be made.

'As soon after the fire as possible, proofs of loss, being a particular statement of the loss, shall be rendered to the company, signed and sworn to by the assured, stating such knowledge or information as the assured has been able to obtain as to the origin and circumstances of the fire, and also stating the title, and all other insurance covering any of the property, and the copy of the written parts of all policies, and the occupation of the entire premises. The assured shall also furnish such further particulars, and such certificates of a magistrate or officer charged with the duty of investigating fires, as may be required. And if loss or damage be claimed upon buildings, fixtures, or machinery, the assured shall, if required, furnish plans and specifications thereof, which shall form a part of the particular statement or proof of loss. The claim shall not be due and payable until sixty days after the full completion of all the requirements herein contained.

'It is furthermore hereby expressly provided and mutually agreed that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or chancery until after an award shall have been obtained fixing the amount of such claim in the manner therein provided, and after proofs of loss have been rendered in due form to the company, nor unless such suit or action shall be commenced within six months next after the fire has occurred.'

1. Is the action barred by the six-months limitation in the policy? The loss occurred on June 23, 1885. Proofs of loss were made and rendered to the company July 31, 1885. By the provisions of the policy the loss was not payable until 60 days after proof of loss, or until September 30, 1885. The summons was served on February 24, 1886, and a general appearance in the action made by the company on March 2d following, so that, if the six-months limitation commenced to run from the day of the fire, the action is barred. If from the time when the action might have been commenced, which was 60 days after proofs of loss, or September 30th, then the action was brought in time.

It is evidence a literal construction of the six-months clause standing apart from the other provisions of the policy, would bar the action. But I am of opinion that all the provisions should be considered together; and, if possible, such a reasonable construction given them as will give proper effect to each part, because it should not be considered that it was in the contemplation of the parties that any one of these several provisions should be inoperative. Now, if a literal construction shall be given to the six-months clause, what will be the effect? Here are various provisions bearing materially on the question of time,-- that allowing examination under oath, and the production of books and vouchers, and more especially the provisions respecting arbitrators, and the one giving 60 days in which to pay after all these things have taken place, and the amount of loss fixed by an award. An arbitration is like a lawsuit in this, at least, that it takes time. Arbitrators must be agreed upon who will take upon themselves...