Harrison v. Hartford Fire Ins. Co.

• Decision Date: 27 January 1894
• Citation: 59 F. 732
• Parties: HARRISON v. HARTFORD FIRE INS. CO.
• Court: U.S. District Court — Southern District of Iowa

59 F. 732

HARRISON v. HARTFORD FIRE INS. CO.

United States Circuit Court, S.D. Iowa, Eastern Division.

January 27, 1894

This was an action brought by the plaintiff against the defendant upon a policy of insurance, New York standard form, the petition being in the usual form. The defendant, for answer pleaded (1) a general denial; (2) prematurity of action under the Iowa statute; (3) that there was an appraisement entered into under the terms of the policy, and no award had been made at the time the suit was commenced, and that said award was a condition precedent to bringing suit; (4) that no proofs of loss had been served. The plaintiff pleaded a waiver of proofs.

The evidence showed that the fire occurred on the 4th day of October, 1892; that on the same day the local recording agent of the defendant, who was present, notified the defendant of the fire, and the defendant advised said agent, within two or three days, that an appraiser would be sent to look after the matter, as soon as he could get there consistently with other duties, which fact was communicated to the assured. About the 14th of October the local agent informed the assured that the adjusters would be at the place of the fire on the 20th of October, and for the assured to get his appraiser ready for appraisement. There was also a policy of insurance upon the same property in another company, and another adjuster representing such other company; and on the 20th of October the adjusters for both companies arrived, and the parties entered into a joint agreement to submit the extent of the loss to two appraisers. The agreement provided that the two appraisers should, together with a third person to be appointed by them, if found necessary to decide upon matters of difference only, appraise and estimate the cash value of the damages by fire. This agreement was duly executed, and two appraisers were chosen, and qualified on said day, and entered upon their duties as such appraisers. They continued in consultation two days, and were unable to agree upon the extent of the loss, and separated with the understanding that they were to meet in Kansas City. The appraiser chosen by the assured was not well, and no meeting occurred in Kansas City. About the middle of January the appraiser for the insurance company called upon the appraiser for the plaintiff, and they each submitted names, one to the other, of persons alleged to be suitable to act as umpire. The appraisers then separated with the understanding and agreement that they would each consider and investigate the competency, etc., of the persons named for umpire. On the 16th of January, 1893, and while matters were in the condition named, suit was commenced by the plaintiff. After the evidence of the plaintiff, showing the above facts, was concluded, the defendant moved the court to direct the jury to return a verdict for the defendant upon the following grounds: (1) That the action was premature under the statutes of Iowa, which provide that no suit shall be begun within 90 days after proofs of loss shall have been furnished; (2) that, under the terms and conditions of the policy, an appraisement and an award is a condition precedent to the right to maintain action; (3) that the parties having voluntarily entered into an agreement to appraise the damages caused by the fire, and the appraisers having been chosen and qualified, and having entered upon their duties as such appraisers, and while they were engaged in the performance of their duties as such appraisers, and before an award was entered, and without any fault upon the part of the defendant, suit was brought by the plaintiff, and that therefore this suit could not be maintained; (4) that no proofs of loss were furnished the defendant, as required by the statutes of Iowa and the conditions of the policy.

D. N Sprague and A. H. Stutsman, for plaintiff.

McVey & Cheshire, for defendant.

WOOLSON District Judge, (orally.)

An examination of the policy in suit shows that, in the event of a disagreement as to the amount of the loss, the same shall be ascertained by two competent and disinterested appraisers the assured and the 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. The policy further provides that no suit or action on the policy for the recovery of any claim shall be sustainable in any court of law or equity until after a full compliance by the assured with all the foregoing requirements, etc. The agreement executed herein for submission to appraisers and...