Randall v. American Fire Ins. Co. of Philadelphia

• Decision Date: 26 January 1891
• Citation: 25 P. 953,10 Mont. 340
• Parties: RANDALL et al. v. AMERICAN FIRE INS. CO. OF PHILADELPHIA.
• Court: Montana Supreme Court

25 P. 953

10 Mont. 340

RANDALL et al. v. AMERICAN FIRE INS. CO. OF PHILADELPHIA.

Supreme Court of Montana

January 26, 1891

Appeal from district court, Lewis and Clarke county; THOMAS J GALBRAITH, Judge.

Bach & Buck and B. P. Carpenter, for appellant.

Tooled & Wallace, for respondents.

HARWOOD J.

The cause of action herein is founded upon an insurance policy whereby appellant insured and agreed to indemnify respondents against loss which might happen by the destruction or damage of appellant's building, situate at Moreland, Gallatin county, Mont., known as the "Moreland Hotel," and certain furniture therein contained, by fire, to the extent of $1500; the sum of $1,125 being placed upon said building and the sum of $375 upon the said furniture. There were also in force during the same period three other policies of concurrent insurance issued by certain other companies in favor of plaintiffs upon the same property, each in the sum of $1,500 and distributed in like amounts on said building and furniture as aforesaid. While said insurance contracts were in force, all of said property, except a small portion of the furniture, was destroyed by fire. This action was brought to enforce payment of said $1,500 indemnity, and the trial resulted in a judgment for plaintiffs in said sum, with interest and costs; whereupon defendant moved for a new trial upon a statement of the case, on the ground of insufficiency of the evidence to justify the verdict, and that the same is against law: and also errors of law occurring at the trial and excepted to by the moving party. Said motion being overruled, the case is brought up by appeal from the order overruling the same, as well as appeal from the judgment.

The insurance policy involved provides, among other conditions, as follows: "The amount of loss or damage to be estimated according to the actual value of the property at the time of the loss, and to be paid within sixty days after the loss shall have been ascertained in accordance with and within the terms and conditions of this policy, and proof of the same, satisfactory to the said company, shall have been made by the assured, and received at the office of the company in Philadelphia. It shall be, however, optional with the company to repair, rebuild, or replace the property destroyed or damaged with other of like kind and quality, within a reasonable time, giving notice of its intention so to do within sixty days after receipt of proofs herein required; and, in case the company elects to rebuild, the assured shall, if required, furnish plans and specifications of the building herein described. The assured sustaining loss by fire under this policy shall forthwith give notice in writing of said loss to the company, and within thirty days thereafter render a particular account, by separate items, and proof thereof, signed and sworn to by the assured, setting forth: (1) A copy of the written portion of this policy, and all indorsements heron; (2) other insurance, if any, on same property, or any portion thereof with copies of written portions of each policy, and all indorsements thereon; (3) the actual cash value of the property described at the time immediately preceding the fire; (4) and the interest of assured in same; (5) for what purposes, and by who, the building herein described, or containing the property herein specified, and the several parts thereof, were used at the time of the fire; (6) the date of the loss, and the amount thereof; (7) how the fire originated, as far as the assured knows believes." The amount of sound value and of damage to the property may be determined by mutual agreement between the company and the assured; or, if they fail to agree, the same shall then, at the written request of either party, be ascertained by an appraisal of each article of personal property, or by competent and impartial appraisers, one to be selected by each party, and the two so chosen shall first select an umpire to act with them in case of disagreement; and if the said appraisers fail to agree they shall refer their differences to such umpire; and the award of any two, in writing, under oath, shall be binding and conclusive as to the amount of such loss or damage, but shall not decide the validity of the contract, or any other question except the amount of such loss or damage. It is further provided in said policy that "the company shall have the right to take any of the articles damaged at their appraised value; and until such proofs as above required are produced, and examinations and appraisals are permitted, the loss shall not be payable." The plaintiffs, in their complaint, set up the contract of insurance, alleged the destruction of the property by fire, and "that plaintiffs' loss thereby was $6,164 on said Moreland Hotel, and $1,851.14 on said furniture and fixtures contained in said hotel." Plaintiffs further allege that they furnished defendant notice of said loss, and that "defendant, by its adjusting agent, made a personal examination into the circumstances of said loss and fire, and made a request of plaintiffs that the value of said building be ascertained by arbitrators to be mutually chosen." That on the 10th day of September, 1887, plaintiffs and defendants did so refer the question of value of said building to arbitrators mutually agreed upon, John Ketchum and R. W. De Noille, of Helena, aforesaid, who reported and decided the value of said building at the time of said fire to be $7,179. " That on the 14th day of September, 1887, the plaintiffs furnished the defendant with proofs of said loss, and of their interest in said property and otherwise fully performed all the conditions of said policy on their part. That on the 15th day of September, 1887, the defendant returned said proofs of loss to plaintiffs, and declined to pay said loss, assigning as the single ground therefor that said proofs were not satisfactory, for the reason that they referred to the estimate made by said arbitrators. That no demand has been made by defendant for a further or any other reference of said loss on building or furniture, since said proofs of loss were so furnished; nor has defendant requested any further profs of loss; nor did the defendant, within sixty days after receipt of proofs, give notice of their intention to rebuild or restore any of said property." Defendant, by answer, denied the value of said building to be the sum alleged by plaintiffs, or any sum exceeding $3,250; and denied the value of said furniture to be the sum alleged by plaintiffs, or any sum exceeding $900; and said answer further put in issue all the allegations of plaintiffs' complaint except the existence of said insurance policy, the destruction of said property by fire, save a small portion of the furniture, and some other allegations not necessary to notice at this time. In addition to the specific denials of plaintiffs' allegations, defendant alleged by way of new matter of defense that the plaintiffs left at the office of defendant's agent in the city of Helena, while said agent was absent therefrom, on or about September 15, 1887, "some paper, which falsely stated that arbitrators had been agreed upon by plaintiffs and defendant;" that plaintiffs' attentions was called to this fact by defendant's agent on the same day, and thereupon plaintiff asked permission to retain said paper, stating that said paper should not be regarded or treated as having been tendered to defendant, to which defendant by its agent assented. The answer further averred that plaintiffs on or about September 14, 1887, "fraudulently, and with intent to deceive and obtain an unfair advantage over defendant in the settlement of said claim, falsely represented to defendant's agent that two certain persons had been agreed upon by plaintiffs and defendant as arbitrators to determine and decide upon the value of said building and the cost of rebuilding the same, and that such arbitrators had determined and decided that the value of said building was at the time of the fire $7,179; whereas in truth and in fact, as plaintiffs well knew, such persons had never been agreed upon or selected as arbitrators, and, as plaintiffs well knew, such persons had never determined, as arbitrators or otherwise, that said building was of the value of $7,179, or that it would cost said sum, or any other particularly, to rebuild the same." The answered further averred that defendant requested plaintiffs to furnish it with plans and specifications of said building so destroyed by fire, but that plaintiffs neglected and refused to furnish the same; and that no proofs, plans, and specifications, declarations or certificates have been furnished, and no examination or arbitration has been permitted or furnished by plaintiffs, or had, as required by the conditions of said policy of insurance. This new matter of defense was controverted by plaintiffs' replication.

The first and main point insisted upon by appellant is that this action is brought upon an alleged award by arbitrators, and that no evidence of value of the property destroyed, except to establish an award, was admissible. This point was raised by defendant in the lower court at the trial, and objection was made to the introduction of any evidence as to the value of the property or the amount of said loss, except to establish an award. This objection was overruled, and the court admitted, over the objection and exception of defendant, evidence offered by plaintiffs tending to prove the allegations of the complain as to the value of the property destroyed and the loss sustained by plaintiffs independent of the appraisal or award of arbitrators as alleged in the complaint. Proof was also admitted on behalf of plaintiff in respect to the alleged...