Hall v. Norwalk Fire Ins. Co.

• Decision Date: 20 July 1888
• Citation: 17 A. 356,57 Conn. 105
• Parties: HALL v. NORWALK FIRE INS. Co.
• Court: Connecticut Supreme Court

17 A. 356

57 Conn. 105

HALL

v. NORWALK FIRE INS. Co.

Supreme Court of Errors of Connecticut.

July 20, 1888.

Appeal from court of common pleas, New Haven county; HALL, Judge.

Action by Henry F. Hall against the Norwalk Fire Insurance Company on a policy of fire insurance. Judgment for defendant, and plaintiff appeals.

H. G. Newton and C. Kleiner, for appellant. W. L. Bennett and G. A. Fay, for appellee.

LOOMIS, J. This is a suit to recover $1,000, the amount insured in a policy of insurance against loss by fire, issued by the defendant company upon a frame building belonging to the plaintiff, situated in Wallingford. There is no question as to the validity of the policy, or the fact of the loss by fire, but the amount of loss, and the mode of its adjustment, is the subject of much contention. The policy in suit provided that in case there was other insurance existing on the same property the defendant should not be liable to pay any greater proportion of the loss than the sum insured in it bears to the whole amount insured thereon; and the record shows that there were at the time of the loss four other policies in as many different companies on the same property. The policy in suit also contained the following provision: "Payment of losses shall be made in sixty days after such proofs of loss shall have been received at the office; and, in case differences shall arise touching any loss or damage after proof has been received in due form, it shall be submitted, upon the written request of either party, to the judgment of two arbitrators, one to be chosen by the company and one by the insured, with power, if they do not agree, to themselves choose a third, and they shall together examine and under oath appraise the sound cash value of all damaged property shown to them, and the cash damage done to the same by the fire; and the award made in writing and signed by any two of the arbitrators shall be binding on the parties, each party paying one-half the expense of reference, but the award shall not determine any question as to the liability of this company under this policy."

The defendant, for answer, pleaded two distinct defenses, but as the court found the issue for the defendant only on the first, no other need be considered. In this was set forth the fact that four other fire insurance companies, the names of which are given, had policies on the same building at the time of the fire, and that, after the loss, on February 26, 1885, the plaintiff and defendant, together with the four other insurance companies, executed a written submission of the demand in the complaint, together with all the demands against the defendant and the other companies named, arising on account of the fire, to the arbitration of Henry L. Morehouse and John C. Mead, with power to choose a third person as umpire, if necessary, making a full copy of the agreement also a part of the allegations; that the parties agreed to abide by the award rendered, and afterwards, and before the commencement of the action, the arbitrators did make their award, and thereby awarded to the plaintiff in all the sum of $4,900, as his just and true damages and the total amount of his loss by fire, and that both the submission and award embraced the risk and loss insured against by the defendant upon the property of the plaintiff; and further alleging that the defendant, in behalf of itself and said four other insurance companies, then and there was, and ever since then has been, willing and ready to pay the plaintiff said amount of $4,900, and is now ready and willing to pay in behalf of itself and said four other insurance companies said award of $4,900, in satisfaction of said supposed loss of the plaintiff, if he would receive the same; and has repeatedly tendered the same to the plaintiff, who heretofore and still refuses to receive said sum in satisfaction of said award; and the defendant also has ever been, and now is, ready and willing to perform said award, and to pay its pro rata of said award to the plaintiff if he will accept the same."

The plaintiff made an elaborate and voluminous reply, tendering divers issues of fact to impeach the award, the principal allegations being, in substance, that the submission upon which the award was based was obtained conditionally and by false representations, and that the arbitrators conducted themselves as against the plaintiff unfairly, partially, and corruptly. The court, however, found all these allegations of fact against the plaintiff, and found the answer true. This adverse finding of the issues of fact would ordinarily eliminate most of the questions of law; but not so here, for the plaintiff makes his appeal to this court, based on 35 alleged errors in law. In order to reduce the discussion of such a bewildering mass to more reasonable limits and some symmetry of form, we have endeavored to classify the whole under the following five heads: The tender of the amount of the loss; the submission to arbitration; the conduct of the arbitrators; the rulings of the court concerning the evidence; the omission to add interest to the award.

1. In regard to the tender, two questions are raised, namely, whether the allegations of the answer were sufficient, and, if so, whether the proof of tender was sufficient. The answer sets forth, in substance, the willingness of the defendant and the other companies to pay the full amount of the award, and that it had been repeatedly tendered by the defendant to the plaintiff, who refused to receive it. The plaintiff now claims that the tender, as pleaded, was not good because of the use of the words "in satisfaction," which he claims import a condition. "We do not think the words necessarily import any condition, but that they may mean simply that the full amount of the award was tendered. But it is not necessary to decide whether the pleading was technically accurate or not. It was not demurred to, as it should have been to entitle the plaintiff to the benefit of the point raised. Had there been a demurrer, we must presume that the defendant would have obviated the difficulty by amendment; for it will be observed, as we shall presently see, that the tender, as in fact made, was clearly unconditional and valid, and the testimony to prove it was not objected to. The other objection—that four other companies were included, and one gross sum tendered in behalf of all—may be disposed of in a similar way. In the absence of a demurrer it ought not to be fatal, and to treat it so would be very unjust under the circumstances of this case. The plaintiff, it would seem, could not have been prejudiced in any way, for if the award was valid it would not be possible for him to recover a greater sum than his entire loss. The tender of the whole was a benefit, rather than an injury, and the entire loss could not have been paid without including the defendant's pro rata share. The plaintiff cites Strong v. Harvey, 3 Bing. 304, as conclusively showing that such a tender must be held bad in law. The case is somewhat analogous in that there was an association of ship-owners as individuals, and not as a corporation, for the mutual insurance of each other's ships, under which each one was holden to pay only in proportion to his subscription, and one only was sued. But here the analogy fails. There had been no arbitration agreed to by all the patties concerned, consolidating all the separate liabilities into one sum of damages, and on referring to the case it will be seen that the real point there decided was simply one of variance, for BEST, C. J., in giving the opinion, said: "When a man has separate demands for unequal sums against several persons, an offer of one sum for the debts of all will not support a plea stating that a certain portion of the sum offered was tendered for one of them." In the case at bar the form of the offer and the form of allegation as to this point precisely agree. The other objection—that the facts found did not constitute a legal tender—is effectually disposed of by the finding. To meet the objection that the offer was conditional we have the finding of the trial judge as follows: "I find that before the commencement of this suit George A. Fay, attorney for the defendant, and for all the insurance companies, having been thereto duly authorized, made to the plaintiff, in behalf of said companies, an unconditional and unqualified offer to pay to him the sum of $4,900, which sum the plaintiff refused to receive. The offer was made in the office of Fay, and in the presence of Blackwell and Cowles. Fay informed the plaintiff that the insurance companies proposed to pay to him (the plaintiff) $4,900, the amount of the award, and thereupon verbally made to the plaintiff an unconditional and unqualified offer to pay to him at that time the sum of $4,900, which the plaintiff refused to receive." And the other objection, founded on the fact that the money was not actually produced within easy reach of the plaintiff's hand, is disposed of in the finding as follows: In making the tender, Fay did not produce the money, nor did he have at his office money sufficient to pay said sum. He thereupon inquired of the plaintiff if it would make any difference if he went and procured the money, and the plaintiff replied that it would not. Fay thereupon informed the plaintiff that he wished no misunderstanding upon the subject; that he desired to make to the plaintiff a legal tender of the sum of $4,900; and that, if it would make any difference, he would go to the bank, and procure the bills or gold. The plaintiff replied that it would make no difference; that he would not take the bills or gold; and that he need not make a formal tender of...