Mosness v. German-American Ins. Co. of New York
| Decision Date | 01 July 1892 |
| Citation | 52 N.W. 932,50 Minn. 341 |
| Parties | Ole Mosness v. German-American Insurance Co. of New York |
| Court | Minnesota Supreme Court |
May 19 1892, Argued
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.
Judgment reversed.
Kitchel Cohen & Shaw, for appellant.
By the terms of the policy, when a disagreement as to the amount of loss arose, an award of appraisers became a condition precedent to the right of action. Gasser v. Sun Fire Office, 42 Minn. 315; Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116; Hamilton v. Liverpool, etc., Ins. Co., 136 U.S. 242; Hutchinson v. Liverpool, etc., Ins. Co., 153 Mass. 143; Hamilton v. Home Ins. Co., 137 U.S. 370.
No action could be maintained after an award was obtained, except upon the award itself, or in avoidance of it. Indiana Ins. Co., v. Brehm, 88 Ind. 578; Carroll v. Girard Fire Ins. Co., 72 Cal. 297.
Failing to contain any allegations showing either the rendition of an award, or reasons why the performance of that condition precedent was waived, the complaint failed to state a cause of action, and the pleader could not supply the omission by any allegations of his reply. Webb v. Bidwell, 15 Minn. 479, (Gil. 394;) Hatch v. Coddington, 32 Minn. 92. The action should be either upon the policy as modified by the award, or upon the policy and in avoidance of the award. The award being admitted, it became a condition precedent to the maintenance of an action upon the policy, either that the award should be pleaded in the complaint as the measure of damage, or that by appropriate allegations in the complaint, it should be attacked as not binding upon the plaintiff. Trainor v. Worman, 33 Minn. 484; 34 Minn. 237; Boon v. State Ins. Co., 37 Minn. 426.
The arbitration clause remains in force until its provisions are complied with, or until by some act on the part of the defendant, the plaintiff is absolved from compliance with its conditions. Carroll v. Girard Fire Ins. Co., 72 Cal. 297; Hiscock v. Harris, 80 N.Y. 402; Uhrig v. Williamsburg City Fire Ins. Co., 101 N.Y. 362.
Courts favor awards, and every presumption will be made in favor of their fairness. The burden of proof is upon the party seeking to set them aside, and the proof must be clear and strong. Brush v. Fisher, 70 Mich. 469; Overby v. Thrasher, 47 Ga. 10; Liverpool, etc., Ins. Co. v. Goehring, 99 Pa. 13; Daniels v. Willis, 7 Minn. 374, (Gil. 295;) Goddard v. King, 40 Minn. 164.
Plaintiff acquiesced in the appraisement proceedings, and is estopped to question their regularity. Duckworth v. Diggles, 139 Mass. 51; Fox v. Hazelton, 10 Pick. 275; Indiana Ins. Co. v. Brehm, 88 Ind. 578; Robb v. Brachman, 38 Ohio St. 423.
Ole Mosness, pro se.
A defect in a complaint may be cured by the answer. Bennett v. Phelps, 12 Minn. 326, (Gil. 216;) Rollins v. St. Paul Lumber Co., 21 Minn. 5; Warner v. Lockerby, 28 Minn. 28; Monson v. St. Paul, M. & M. Ry. Co., 34 Minn. 269; Horn v. Western Land Ass'n, 22 Minn. 233.
If there was a departure in pleading, as claimed, and the defendant seasonably and properly took advantage of it, the error was afterwards waived. The case was tried as though the pleadings had been made in their regular order. The defendant introduced its evidence upon the entire case, and to all intents and purposes, had all the benefits of the issues that it could have had if the pleadings had been made in the manner contended for. Is the case to be reversed for the sole purpose of amending or correcting the pleadings, when it is manifest that the case must be tried in the same order on a second trial, and that the result is not likely to be more favorable to the defendant? If in this there was error, it became, from the manner in which the case was tried, error without prejudice.
The authorities are unanimous that the refusal, or even omission, of arbitrators to hear evidence, renders the award void. Morse, Arb. 142; Canfield v. Watertown Fire Ins. Co., 55 Wis. 419; Van Cortlandt v. Underhill, 17 John. 405; Parsons v. Citizens' Ins. Co., 43 U. C. Q. B. 261.
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. 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...
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