T. J. Turner v. Hartford Fire Insurance Company
| Decision Date | 06 May 1919 |
| Parties | T. J. TURNER, Appellee, v. HARTFORD FIRE INSURANCE COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Appanoose District Court.--SENECA CORNELL, Judge.
SUIT at law on an insurance policy for damages alleged to have been done to a building by lightning. One defense was by pleading in answer filed on the law side, that there had been a common-law arbitration; that the award resulting was conclusively binding on the parties; and that tender of the amount awarded had been duly made and kept good. A reply to this answer, also filed on the law side, urged various avoidances to said award, and made the ultimate claim that the same is null and void. The case was tried to the court without a jury. From judgment on the policy for a sum larger than the amount fixed in the award, the defendant appeals.
Affirmed.
Parker Parrish & Miller, for appellant.
Townsend & Miller, J. R. Price, and Porter & Greenleaf, for appellee.
I.
Many attacks upon the appraisement and the award are grounded upon assertions that certain things were done and others omitted. If it be assumed that doing and not doing these things would constitute valid objections, these attacks are futile, because the record does not show that these things were done or not done.
II. One attack is that no notice of the time and place of the meeting of the two original arbitrators was ever given to plaintiff. Another and related attack is that he was never given an opportunity to offer or present evidence to sustain his claim. Still another is that the arbitrators heard no evidence to enable them to arrive at any decision as to the amount of damage sustained by plaintiff. The agreement to submit to the appraisers provided that they should appraise and ascertain actual cash value and direct loss by lightning. This invoked nothing but their personal investigation. They were not bound to take testimony, and it will not set the award aside that they did not give said notice, and failed to hear witnesses. See Thornton v. McCormick, 75 Iowa 285, 39 N.W. 502.
III. The plaintiff alleged that the award was void, among other reasons, because the arbitrators had wholly neglected to investigate whether the plaster in the building had been damaged by lightning, and had given that item of damages no consideration whatever. The main support for this contention is the argument that the court found there was such omission to consider. It is recited in said finding "that the persons selected to appraise the damages did not take into consideration the condition of the plastering." If this were all, it would be a finding that the appraisers were guilty of the omission charged. But this is not all. It is immediately followed by the further statement that the appraisers "made the appraisement on the theory and believing that the lightning had nothing to do with the condition of the plaster." Taken altogether, this is not a finding that the appraisers neglected to investigate whether lightning had damaged the plaster, but that, on some consideration, they reached the conclusion that the condition of the plaster was not due to lightning.
IV. Was it error to try the validity of the award on the law side?
We said, in Tomlinson v. Tomlinson, 3 Iowa 575, that certain things urged will not avoid an award where "there are no circumstances of an equitable character to satisfy us that the parties should be again heard," and in Burroughs v. David, 7 Iowa 154, at 158, that courts have but little power over common-law arbitrators; that this is especially true of the courts of law, because "nearly all the authority which does exist in regard to them resides in courts of equity;" that it has been held, in many cases, that "evidence of mistakes in an award cannot be given in a court of law;" that, if certain matters are receivable to impeach the conduct of the arbitrators, these are available "perhaps only in equity," and are ordinarily not receivable in a court of law; and that, "even where the courts have interposed, it has generally been by those which proceed upon the principles of equity, because the relief sought is usually obtainable only through the medium of these principles." In Thornton v. McCormick, 75 Iowa 285, 39 N.W. 502, we held that such an award as was made in that case must be held to be conclusive, unless, for one thing, "equitable grounds for setting it aside are shown;" and that, "when an award is questioned on equitable grounds, the pleading attacking it should allege facts as distinguished from legal conclusions which show that it should be set aside." Appellants may fairly claim that, at the time these decisions were made, this court was inclined to hold that, if the award might be avoided at all, it should be upon an exhibition of equitable circumstances justifying the setting aside of the award, and that relief on that ground was not to be had on the law side. Proceeding upon this premise, the appellants urge that, unless a fatal defect appears on the face of the award, an attempt to impeach same cannot be entertained on the law side, because such impeachment of an award is of equitable cognizance only. We are inclined to hold, on the authority of In re Receivership of Magner, 173 Iowa 299, 155 N.W. 317, Div. 3, beginning at page 315, that this position is not well taken. We there held that, since both the law and the chancery jurisdiction are exercised by the same court, that when, in an action properly begun at law, an emergent issue is presented which would be of equitable cognizance if presented by an original suit, the law court may settle such emergent issue without adjourning the hearing at law and having said issue presented to itself sitting as an equity court. The concrete situation is this: Plaintiff rightly brought his suit on the law side. As a bar to his recovering, the defendant urged on the law side that there had been accord and satisfaction by means of an award. We hold that, if it be assumed an original suit to set aside this award should have been in equity, yet the law court could determine whether the award pleaded in the law action stood in the way of a recovery in the law action.
Be that as it may, appellant may not now urge that the avoidance of the award should have been tried out as an equitable issue. When plaintiff filed his reply, defendant knew as well then as it knows now that an attempt was being made to litigate the validity of the award on the law side. If that is objectionable now, it was objectionable then. The reply was in no manner challenged. No complaint of the forum was made, nor motion to transfer. It seems to us we must hold that, in these circumstances, the appellant conceded that the issue should be determined by a court which was not sitting as an equity court. Further support of this conclusion is afforded by the fact that, when plaintiff offered testimony tending to show what damage he had, in fact, sustained, one objection interposed was that such testimony should not be received, because there had been an appraisement which was binding upon the parties. This amounted to a declaration on part of defendant that it was competent for the court to decide whether or not the appraisement and award were binding. We conclude appellant may not now urge that the relief granted the appellee should not have been given on the law side.
V. This narrows the main contention on this appeal to the assertion that, even if the law court had power to act, it erred in using that power to nullify the award.
It may be conceded that the award should not be set aside merely because the arbitrators ignored evidence; nor merely because it may be found it lacked sufficient evidence to support it; nor merely because the arbitrators fell into what is no more than honest error in judgment. Thornton v. McCormick, 75 Iowa 285, 39 N.W. 502; Burchell v. Marsh, 17 HOW 344, 349, 15 L.Ed. 96. It may be conceded that an attack upon the award may not, in effect, be an application for new trial, or an appeal. Thornton v. McCormick, 75 Iowa 285, 39 N.W. 502. It may further be conceded that, where both law and fact are submitted to the arbitrators, that their award is conclusive. Thornton v. McCormick, 75 Iowa 285, 39 N.W. 502. But it is a sufficient answer to say that the agreement to submit to arbitration which we have before us was not an agreement to submit both law and fact. The submission was limited to ascertaining and fixing the amount of the sound value and of the direct loss and damage by the lightning.
All these concessions made, does it follow that the award at bar is conclusive? The award was disregarded for mistake. The position of appellant is that no court may set aside an award for "mistake." It may be conceded the chancellor may not substitute his judgment for that of the judges chosen by the parties, and that the award should be the end of litigation, rather than its commencement (Burchell v Marsh, 17 HOW 344, 349, 15 L.Ed. 96); conceded that the "mistake" which will set aside the award is not made out by the fact that the court differs in opinion with the arbitrators (5 Corpus Juris 179). It is true the power to interfere with a common-law award has been much limited, and that strong proof is required. But with one exception, we have been unable to find any holding that no mistake shown on judicial review will avoid the award. In Knox v. Symonds, 1 Vesey 369, it is ruled that even gross mistake, clearly proved, will not avail unless such mistake is made out "to the satisfaction of the arbitrators." We think the weight of authority sustains the Knox case, in so far as it holds that gross mistake, strongly...
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