Mosness v. German-American Ins. Co.

• Decision Date: 01 July 1892
• Citation: 50 Minn. 341
• Parties: OLE MOSNESS <I>vs.</I> GERMAN-AMERICAN INSURANCE CO. OF NEW YORK.
• Court: Minnesota Supreme Court

50 Minn. 341

OLE MOSNESSvs.

GERMAN-AMERICAN INSURANCE CO. OF NEW YORK.

Supreme Court of Minnesota.

Argued May 19, 1892.

Decided July 1, 1892.

Appeal by defendant, the German-American Insurance Company of New York, from a judgment of the District Court of Ramsey County, Egan, J., entered November 2, 1891, against it for $1,226.52.

Kitchel, Cohen & Shaw, for appellant.

Ole Mosness, pro se.

COLLINS, J.

This action was brought to recover for insurance upon plaintiff's household goods, wearing apparel, and other chattels, damaged, and, in part, wholly destroyed, by fire. There was insurance in another company on the same property by consent. The complaint contained the usual allegations; among others, that plaintiff had performed and complied with all of the terms and conditions precedent found in the policy, a copy of which was made a part of the pleading. It was also alleged that, after having examined the plaintiff's loss, the defendant company insisted upon paying a certain named sum, much less than the amount stated as the amount of the loss, in full satisfaction of its share thereof. The The answer set forth, in bar of the action, that soon after the fire, in accordance with the provisions of the policy, the parties selected two appraisers, and these two chose an umpire, who were to determine the amount of the loss, and that an award was made by one of these appraisers and the umpire. The agreement for submission and the award were made a part of the answer. The reply admitted the submission and the making of the award, but alleged fraud and misconduct on the part of the persons who made the award in several particulars, and, among other things, that they declined and refused to hear testimony as to the character or value of any of the property which plaintiff claimed was totally destroyed, and that they were unacquainted with its value, and had no means to ascertain the same, or plaintiff's loss and damage, except from the testimony which plaintiff unsuccessfully attempted to spread before them. A large number of appellant's objections to the reception of plaintiff's evidence, and many of its assignments of error, have reference to the claim of its counsel that in the reply there was a departure from the case presented by the complaint. The material allegations of the various pleadings, and that the contract of insurance as found in the policy was made a part of the complaint, have already been stated. It is contended that from the language of the policy it expressly and distinctly appears that, in case of a disagreement between the insurer and the insured over the amount of the loss, an award by appraisers, selected as therein provided for, was an essential part of the contract, and a condition precedent to plaintiff's right of action. Gasser v. Sun Fire Office, 42 Minn. 315, (44 N. W. Rep. 252.) The language in regard to an appraisal and an award, found in the policy now being considered, is unlike that discussed and passed upon in the Gasser Case; but we are unable to say that it substantially differs in any respect, or that its import and legal effect can be distinguished, and the respondent has not undertaken to point out wherein there is any material difference, — a difference which would warrant us in asserting that in the case at bar the provisions as to an appraisal for the sole purpose of ascertaining the amount of a loss in case of a dispute, and an award, were not an essential part of the contract, and a condition precedent to plaintiff's right of action. The present policy stipulated that, whenever an ascertainment or estimate of the amount of the loss becomes necessary, it "shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which the company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss" have been received. The manner of selecting the appraisers and an umpire, and their mode of procedure, is also set forth; and it is further stipulated, partly a repetition, that the amount of the loss "shall not be payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss had been received by this company, including an award by appraisers, when an appraisal has been required." And, finally, there is a provision that no suit or action "for the recovery of any claim...