Oakes v. Pine Tree State Mut. Fire Ins. Co.

• Decision Date: 03 June 1914
• Citation: 112 Me. 52,90 A. 707
• Parties: OAKES v. PINE TREE STATE MUT. FIRE INS. CO.
• Court: Maine Supreme Court

90 A. 707

112 Me. 52

OAKES

v. PINE TREE STATE MUT. FIRE INS. CO.

Supreme Judicial Court of Maine.

June 3, 1914.

Exceptions from Superior Court, Cumberland County, at Law.

Action by Raymond S. Oakes, trustee, against the Pine Tree State Mutual Fire Insurance Company. Judgment for defendant, and plaintiff excepts. Exceptions sustained.

Argued before SAVAGE, C. J., and SPEAR, KING, HALEY, HANSON, and PHILBROOK, JJ.

Charles G. Keene, of Portland, for plaintiff. Melvin H. Simmons, of Augusta, for defendant.

KING, J. The action is to recover the amount of a policy of fire insurance issued by the defendant; the premises insured having been totally destroyed by fire December 4, 1911. The policy was of the Maine standard form containing the following provisions:

"In case of loss under this policy and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being selected by the two so chosen; the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage, and such reference, unless waived by the parties, shall be a condition precedent to any right of action in law or equity to recover for such loss."

The plaintiff introduced, by agreement and without objection, as part of his case, a letter from the president of the defendant company to the plaintiff's attorney, admittedly sent and received prior to the commencement of the action, containing the following statement:

"Yours re claim of E. U. Archibald at hand. This company deny all liability and have not done anything about it."

At the close of the plaintiff's evidence counsel for the defendant moved for a nonsuit on the ground that the plaintiff bad failed to show any reference to arbitration as required by the policy. Plaintiff admitted that no such reference was had, but claimed that the defendant had waived it, and that the letter from the defendant denying all liability was the evidence of such waiver. Thereupon the court ruled, as a matter of law, that said letter did not constitute a waiver by said defendant company of such reference, and ordered a nonsuit. The case is before the court on the plaintiff's exceptions to that ruling.

In section 5, c. 49, R. S., It is provided that, if the insurance company shall not, within ten days after written request to appoint referees under the provision for arbitration in the policy, name three men from whom the insured may select one, or shall not, within ten days after receiving the names of three selected by the insured, make known to him its choice of one of those to act as one of the referees, "it shall be deemed to have waived the right to an arbitration under such policy, and be liable to suit thereunder."

In support of the ruling the defendant contends that the statute has specified what constitutes a waiver by the Insurance company, and that, at least in the absence of proof of an express waiver, no other waiver by the company can be shown. The contention is not tenable. That statutory provision was not intended, we think, to specify the only mode by which the insurance company could waive the arbitration provision; but its manifest purpose was to provide a necessary and effective means to prevent the company, by nonaction on its part in selecting the...