Kahnweiler v. Phoenix Ins. Co.

• Citation: 57 F. 562
• Parties: KAHNWEILER et al. v. PHOENIX INS. CO. OF BROOKLYN.
• Decision Date: 04 September 1893
• Court: U.S. District Court — District of Kansas

57 F. 562

KAHNWEILER et al. v. PHOENIX INS. CO. OF BROOKLYN.

United States Circuit Court, D. Kansas, First Division.

September 4, 1893

Rossington Smith & Dallas, for plaintiffs.

H. M Jackson, for defendant.

FOSTER District Judge.

On or about the 8th day of January, 1887, the plaintiffs' stock of merchandise was totally destroyed by fire, excepting about $30 salvage. The stock was insured for over $40,000 in something like 20 different companies. The defendant company had a policy of $2,500 on the goods. Shortly after the fire an adjusting agent of the defendant company made a full investigation into the circumstances of the loss, and thereupon informed the plaintiffs that their total loss was $22,700, and further said: 'We have got to go away, and want to settle. We have had dealings with your nationality before.' 'This amount the companies are ready to pay,' and he was ready to pay the proportionate part due from the Phoenix company. The insured replied: 'We had over $45,000 loss, and will not accept any such settlement.' On the 4th of February the insured wrote to the office of the company, at Brooklyn, N. Y., for blanks on which to make proofs of loss, and received an answer from its Chicago office, dated February 7th, declining to furnish the blanks. On or about the 23d day of February the proofs of loss were made out, and were received at the Chicago office in four or five days thereafter. The company made no objection to the proofs of loss, or the time of making the same. This suit was commenced on the 13th of August, 1887, about seven months after the fire. The policy of insurance contains the following provisions:

(9) 'Persons sustaining loss or damage by fire shall forthwith give notice in writing of said loss to the company and within thirty days thereafter render a particular and specific account of such loss, signed and sworn to by them. * * *' (10) 'The amount of sound value and of damage to property, whether real or personal, covered by this policy, or any part thereof, may be determined by mutual agreement between the company and the assured, or, failing to agree, the same shall then be submitted to competent and impartial arbiters, one to be selected by each party; the two so chosen, in case of disagreement, to select an umpire, to whom they shall refer each subject of difference. And the award of any two of them, in writing, under oath, shall be binding and conclusive as to the amount of such loss or damage, but shall not determine the validity of the contract, nor the liability of this company, nor any other question, except only the amount of such loss or damage. Each party shall pay their own arbitrator, and one-half of the cost of the umpire. It shall be optional with the company to take the whole or any part of the articles at their appraised value; and, further, that it shall be optional with this company to repair, to rebuild, or replace the property lost or damaged, with like kind or quality within a reasonable time, giving notice of their intention to do so within sixty days after receipt of the proofs herein required, and until such proofs * * * are produced by the claimant, and such examinations and arbitrations permitted and had, the loss shall not be payable. * * *' (12) '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 above provided, which is agreed to be a condition precedent, nor unless such suit or action shall be commenced within twelve months next after the date of the fire from which such loss shall occur; and, should any suit or action be commenced against this company after the expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitations to the contrary notwithstanding.'

The defendant insists that this action cannot be maintained--First, because the proofs of loss were not rendered within...