Pretzfelder v. Merch.S' Ins. Co

• Decision Date: 22 November 1898
• Citation: 31 S.E. 470,123 N.C. 164
• Court: North Carolina Supreme Court
• Parties: PRETZFELDER. v. MERCHANTS' INS. CO. et al.

31 S.E. 470

123 N.C. 164

PRETZFELDER.

v.MERCHANTS' INS. CO. et al.

Supreme Court of North Carolina.

Nov. 22, 1898.

Trial—Submission of Issues—Eire Insurance— Questions of Law—Proofs of Loss—Waiver —Arbitration—Appeals—Indexing Record.

1. Where the issues submitted by the court embrace every phase of the case as to the facts which can be passed on, it is not error to refuse to submit additional issues.

2. In an action on a policy, where the evidence as to waiver of proofs of loss is undisputed, the question of a waiver is one of law.

3. A demand by an insurance company for a reference to appraisers, according to a provision of the policy, constitutes a waiver of proofs of loss, where the appraisers are to view the loss themselves, and adjust the damages.

4. Where a reference to appraisers of the loss under a policy, which was a waiver of proofs of loss, afterwards failed without the fault of insured, his failure to then furnish proofs does not bar his right to recover by action.

5. Where the arbitrators under a policy, or a majority of them, fail to agree on an award, insured, unless he is shown to have acted in bad faith in selecting his arbitrators, is not compelled to submit to another arbitration, but may forthwith bring his action.

6. The points of law decided in a former appeal cannot be considered on a second appeal.

7. Where any part of the record on appeal is printed, the indexes required to be put in the original record by rules 19 and 20 (22 S. E. vii.) should also be printed.

Appeal from superior court, Guilford county; Coble, Judge.

Action by Max Pretzfelder against the Merchants' Insurance Company and others to recover on a lire insurance policy. Prom a judgment for plaintiff, defendants appeal. Affirmed.

John W. Hinsdale and J. T. Morehead, for appellants.

R. R. King, A. L. Brooks, and J. E. Boyd, for appellee.

CLARK, J. The first exception, for failure to submit additional issues, is without merit. Every phase of the dispute as to the facts could have been passed upon under the five issues submitted by the court. Willis v. Railroad Co., 122 N. C. 906, 29 S. E. 941; Patterson v. Mills, 121 N. C. 258, 28 S. E. 368; Coley v. City of Statesville, 121 N. C. 301, 28 S. E. 482. The additional issue asked for which was most pressed was, "Did defendants waive proofs of loss?" Upon the issues found, and the undisputed evidence, that was a question of law; for the demand alleged by the defendants, for a reference of the loss to appraisers, under a provision in the policy, was a waiver of proofs of loss, which became useless if the appraisers were to view the loss themselves, and adjust the damages. Allemania Fire Ins. Co. v. Pitts Exposition Soc. (Pa. Sup.) 11 Atl. 572; 2 May, Ins. § 468; Dibbrell v. Insurance Co., 110 N. C. 193 (at page 206, and bottom of page 209), 14 S. E. 783. After the appraisal fell through, without plaintiff's fault, as the Jury find, the plaintiff with propriety might, and probably should, have furnished proofs of loss; but, not being compelled to do so, the failure is rather a technicality than a meritorious defense, and should not work a forfeiture of all right of a recovery for the goods insured and damaged.

When this cause was here on the former appeal it was held that, if the appraisal fell through by no fault of the plaintiff, he is relegated to his right of action. It is there said (116 N. C, at pages 496, 497, 21 S. E. 303): "The arbitrators were appointed, but disagreed and refused to go on, and finally broke up without making an award. Subsequent attempts to agree upon another board failed. The parties were thus relegated to their legal rights, and the action can be maintained. Braddy v. Insurance Co., 115 N. C. 354, 20 S. E. 477. Indeed, as was...