German Ins. Co. of Freeport v. Eddy

• Decision Date: 29 March 1893
• Parties: GERMAN INS. CO. OF FREEPORT v. EDDY. QUEENS INS. CO. OF LIVERPOOL v. EDDY. GERMAN FIRE INS. CO. OF PEORIA v. EDDY.
• Court: Nebraska Supreme Court

36 Neb. 461

54 N.W. 856

GERMAN INS. CO. OF FREEPORT

v.EDDY.

QUEENS INS. CO. OF LIVERPOOL

v.EDDY.

GERMAN FIRE INS. CO. OF PEORIA

v.EDDY.

Supreme Court of Nebraska.

March 29, 1893.

Syllabus by the Court.

1. Under the valued policy act of 1889, stipulations in a policy of insurance in conflict with any of the provisions of that act are inoperative, and this applies to a provision, in case of loss, for the appointment of arbitrators. If the property is “totally destroyed,” there is nothing to arbitrate.

2. Where all the combustible material in a building is destroyed by fire, although portions of the brick walls are left standing, but are so injured by the fire that they must be torn down, for the purpose of insurance the property is totally destroyed; but, if the person insured should use the brick or other material not destroyed to rebuild, the company would be entitled to the value of such brick or material.

3. Under the issues made by the pleadings, the principal question was whether or not the property had been “totally destroyed,” and this question was fairly submitted to the jury, and the verdict is supported by the evidence.

Error to district court, Lancaster county; A. S. Tibbets, Judge.

Action by Ambrose Eddy against the German Insurance Company of Freeport, Ill., on a fire insurance policy. Same against the Queens Insurance Company of Liverpool. Eng. Same against the German Fire Insurance Company of Peoria, Ill. The cases were tried as one case, and one record was made, applicable to each of the cases. There was judgment for plaintiff, and, defendants' motion for a new trial being overruled, they bring error. Affirmed.L. Heiskell, J. R. Wash, Adams & Scott, I. W. Lansing, and Chas. Offutt, for plaintiffs in error.

Abbott, Selleck & Lane, for defendant in error.

MAXWELL, C. J.

The above cases were tried together in the court below, and a verdict rendered in favor of the defendant in error against the German Fire Insurance Company of Peoria, for $1,824.46, against the Queens Insurance Company for $1,037.23, and the German Insurance Company of Freeport for $912.22; all of said verdicts with interest from date of loss. The petition in each case alleges a total loss. The answer admitted the execution of the policies, and the liability of the companies thereon, but alleged, in avoidance, that the policies provided that, “in the event of a disagreement as to the amount of loss, the same shall be ascertained by two competent and disinterested appraisers, the assured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; and the award in writing of any two shall determine the amount of such loss.” And the said policies each further provided that “no suit or action on this policy shall be sustainable in any court of law or equity until after full compliance by the assured with all the foregoing requirements.” That there was “disagreement as to the amount of loss,” and a demand by the insurance companies, in due time, that the question as to the amount of loss be submitted to arbitrators. That the demand was acceded to on July 3, 1890, and an arbitrator selected by each party on that day, and that, therefore, the actions were prematurely brought, they having been instituted while the arbitrators were acting, and before they made an award, and that on September 12, 1890, two of the arbitrators made an award fixing the amount of loss at $1,500, and no more. The reply is as follows: “That he denies each and every allegation in said answer contained except as hereinafter specifically admitted. He admits that on the 3d day of July, 1890, there was an agreement by and between the parties hereto that the amount of the loss sustained by the plaintiff in said fire should be submitted to arbitration, as provided in the policy herein sued on; that the plaintiff chose the said Royer and the defendant chose the said Harte to act in the said arbitration. Plaintiff further alleges that from that time he and the one he so chose, the said Royer, used their best efforts to have the said appraisal and arbitration made as provided in the said policy, but alleges that they were not able to get the said Harte to act with them, and alleges that the said Harte neglected and refused to act in said arbitration for more than the space of 30 days thereafter, although often requested so to do. That by reason of the refusal of the said Harte to act in said arbitration, and the failure of the said Harte and the said Royer to make any appraisal of the said loss in said fire for more than the space of 30 days, the said loss was never arbitrated and determined under the said policy, and in accordance with the...