Harrison v. Hartford Fire Ins. Co.

• Decision Date: 08 October 1900
• Citation: 83 N.W. 820,112 Iowa 77
• Parties: GEORGE D. HARRISON v. HARTFORD FIRE INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

83 N.W. 820

112 Iowa 77

GEORGE D. HARRISON v. HARTFORD FIRE INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 8, 1900

Appeal from Louisa District Court.--HON. W. S. WITHROW, Judge.

ACTION on an insurance policy. Verdict and judgment for the plaintiff, and the defendant appeals.

Reversed.

McVey & McVey for appellant.

D. N Sprague and A. H. Stutsman for appellee.

LADD J. GRANGER, C. J., not sitting.

OPINION

LADD J.

The policy was issued January 18, 1890, and the insured property destroyed October 4, 1892. On October 20th of that year the parties entered into a written agreement for the arbitration of the extent of the loss. The appraisers selected made no very determined effort to estimate the damages, failed to choose an umpire, and on the sixteenth day of January, 1893, the plaintiff sued for the indemnity by causing an original notice to be served. The petition was filed ten days later, and the action transferred to the United States circuit court, where, on the twenty-seventh day of January, 1894, a verdict was directed for the defendant on a plea in abatement. 59 F. 732. The plaintiff demanded that on the second day of May, 1894, the parties proceed with the arbitration, but defendant and its appraiser made no response. Another suit was begun in the United States circuit court, May 29, 1894, but, on demurrer, it was held to be barred, and was subsequently dismissed. 67 F. 298. The action now under consideration was commenced July 26, 1894, and on a former hearing was held to be barred by the limitation contained in the policy, requiring suit to be instituted within one year after the loss. 102 Iowa 112. These decisions rest on the statute as it formerly stood, prohibiting suit within 90 days after service of proofs of loss and the limitation in the policy. No proofs of loss were furnished, but these were undoubtedly waived by the agreement to arbitrate. Dee & Sons Co. v. Key City Fire Ins. Co., 104 Iowa 167, 73 N.W. 594.

It will be observed, then, that the cause of action matured not earlier than January 18, 1893, and, while the first suit was commenced several days too soon, the last was begun more than six months after the twelve months stipulated limitation had expired. Upon reversal, however, by amendments to the pleadings, this question was raised: Did bringing the suit January 16, 1893, amount to an abandonment by the plaintiff of the agreement to arbitrate? If it did not, then that agreement was outstanding, and not repudiated until defendant failed to proceed upon demand, May 2, 1894, and, as under the policy suit might not be brought until 60 days after an award, the period of limitation had not elapsed when this action was begun. If it did, then the action is barred. The agreement merely provided that each party choose an appraiser, and that these, with a third to be selected by them, estimate in writing the damage occasioned by the fire, and that such an estimate, when so made, be binding on the parties. That naked contracts to arbitrate are revocable by either at any time before an award, and that commencing suit in court has that effect, appears to be well settled. Kimball v. Gilman, 60 N.H. 54; Peters' Adm'r v. Craig, 6 Dana 307; Nurney v. Insurance Co., 63 Mich. 633 (30 N.W. 350, 6 Am. St. Rep. 338); Paulsen v. Manske, 126 Ill. 72 (18 N.E. 275, 9 Am. St. Rep. 532); Leonard v. House, 15 Ga. 473; Snodgrass v. Gavit, 28 Pa. 221; Assurance Co. v. Hocking, 115 Pa. 407 (8 A. 589, 2 Am. St. Rep. 562). A contrary conclusion was reached in Knaus v. Jenkins, 40 N.J.L. 288 (29 Am. Rep. 237), where the court evidently followed Sutton v. Tyrrell, 10 Vt. 91, without noticing the feature of that case distinguishing it from those cited above. There the action was pending, and its entry on the docket and continuance merely was held not to amount to a revocation of its submission to arbitrators. See, also, Morse Arbitration, 236. This stipulation differs from the agreement to arbitrate contemplated by chapter 14 of title 21 of the Code, in that no judgment might be entered thereon, and for this reason the statutory prohibition of revocation has no application. See section 4390, Code. But there is a line of decisions holding that where a submission is part of an agreement, containing other terms to be performed by the parties, especially if those terms have been in part or wholly executed, it is not revocable. McKenna v. Lyle, 155 Pa. 599 (26 A. 777, 35 Am. St. Rep. 910); Guild v. Railroad Co., 57 Kan. 70 (45 P. 82, 33 L.R.A. 77.)

This agreement, however, relates to no subject other than arbitration. True, the policy provides for arbitration, but only "in event of disagreement as to the amount of loss," and the record discloses no such disagreement. See Mentz v. Insurance Co., 21 Am. Rep. 80. Again the policy stipulates for the selection of an umpire before appraisement, while under the contract one is to be chosen only when necessary. These discrepancies are mentioned, not as indicating the invalidity of the agreement, but its independent character as a contract. See Adams v. Insurance Co., 85 Iowa 6, 51 N.W. 1149. Indeed, in the original reply, the plaintiff "specifically denies any arbitration was ever attempted or made under or by virtue of the terms of the policy." It is clear that by bringing suit the plaintiff revoked any authority theretofore derived from the agreement of October 20, 1892. In seeking redress through the courts, he unmistakably indicated his purpose not to adjust the loss in any other manner. Shortly after this, plaintiff informed the defendant's agent of his...