Rolfe v. Patrons' Androscoggin Mut. Fire Ins. Co.

• Decision Date: 30 December 1908
• Citation: 105 Me. 58,72 A. 732
• Parties: ROLFE v. PATRONS' ANDROSCOGGIN MUT. FIRE INS. CO.
• Court: Maine Supreme Court

72 A. 732

105 Me. 58

ROLFE

v. PATRONS' ANDROSCOGGIN MUT. FIRE INS. CO.

Supreme Judicial Court of Maine.

Dec. 30, 1908.

(Official.)

Report from Supreme Judicial Court, Knox County, in Equity.

Bill by Nettie Rolfe against the Patrons' Androscoggin Mutual Fire Insurance Company. Case reported to the law court. Bill dismissed.

Bill in equity brought to set aside an award made by referees in a fire insurance matter. The defendant demurred and answered. The demurrer was overruled, and the defendant excepted. The cause was then tried to a jury and a verdict rendered. The case was then reported to the law court, with the stipulation that "upon the whole case the court is to render judgment in accordance with the rights of the parties."

The case is stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ.

Arthur S. Littlefield, for plaintiff. John A. Morrill, for defendant.

BIRD, J. This is a bill in equity to set aside an award. The plaintiff and defendant are parties to a policy of insurance of the Maine standard form, to which was annexed a rider containing a provision to the effect that the liability of the defendant shall not exceed the sum of $900 (the amount of the policy) nor more than two-thirds of the actual destructible value of the property at the time the loss may happen. In the month of July, 1906, and within the term of the policy, the property insured was totally destroyed by fire. Failing to agree, the parties entered into an agreement in February, 1907, by which E. L. Philoon, chosen by defendant, and John L. Plilt, chosen by plaintiff, were selected as referees (the appointment of a third being waived) "to examine into, consider, and appraise the amount of loss or damage, if any, by said fire to the property described in said policy," and make their award, which, when signed by the referees, should be conclusive and final upon the parties as to the amount of loss and damage. The referees heard the parties and their respective counsel, and by an award signed by both referees and dated the 11th day of May, 1907, "determined the amount of loss and damage referred to in the foregoing submission to be $850." The bill of complaint filed February 25, 1907, alleges in paragraph 4 upon information that the sum found and inserted in the award was never agreed upon by the referees as the total amount of the loss to the premises, but was agreed upon as the part of the total loss which the defendant by its policy agreed to pay; that the award as signed does not represent any agreement or conclusion reached by the referees, but that the award "was signed, and was intended to be the sum representing two-thirds of the total loss or damage by fire, and not the full amount thereof"; and that the award was signed by accident and mistake by the referees, and does not represent their finding.

The defendant demurred to the bill, and especially to the allegations of paragraph 4. The demurrer was overruled, and defendant excepted. The ruling was correct, as the bill sets forth a mutual mistake of the referees in properly setting out in the award the sum by them agreed upon. The answer of defendant denies all the allegations of paragraph 4 of the bill. No replication appears to have been filed.

At the last January term of the court in the county where the bill is pending the following issue of fact was submitted to a jury: "Did John L. Hilt at the time he signed the award understand and intend and agree that the amount specified in the award of $850 was the total amount of the loss or damage by Are to the property described in the policy, or the amount which Mrs. Rolfe, the insured, was to receive for her loss under the terms of the policy." To this inquiry the jury made...