Vincent v. German Ins. Co.

• Decision Date: 11 April 1903
• Citation: 94 N.W. 458,120 Iowa 272
• Parties: MITCHELL VINCENT, Appellee, v. THE GERMAH INSURANCE COMPANY OF FREEPORT, ILLINOIS, Appellant
• Court: Iowa Supreme Court

94 N.W. 458

120 Iowa 272

MITCHELL VINCENT, Appellee, v. THE GERMAH INSURANCE COMPANY OF FREEPORT, ILLINOIS, Appellant

Supreme Court of Iowa, Des Moines

April 11, 1903

Appeal from Monona District Court.--HON. GEO. W. WAKEFIELD, Judge.

SUIT in equity to set aside an award made by appraisers selected by the parties to this suit to determine the amount of plaintiff's loss under a policy of insurance held by him in the defendant company upon a house in the town of Onawa and to recover the amount of the loss actually sustained.The material issues will be stated in the body of the opinion.The case was tried to the court, resulting in a decree and judgment for plaintiff in the sum of $ 626.60, and defendant appeals.

Reversed.

Sullivan & Sullivan and J. W. Anderson for appellant.

Mackenzie & Ryan and C. E. Underhill for appellee.

OPINION

DEEMER, J.

A great many questions are argued which do not seem to be material or, if material, are not properly presented.The policy was issued June 18, 1897, and the fire occurred November 6, 1897 resulting in a partial destruction of the premises insured.The policy provided, among other things, that "it is expressly agreed that the amount of any loss or damage sustained by the assured to any of the property hereby insured, shall, at the written request of either party, made prior to the time when said loss or damage shall become due and payable under the terms of the contract, be submitted to three disinterested and impartial appraisers, to be selected, one by the assured and one by the company and a third by the two already provided for, the award or appraisal of any two of whom, in writing and under oath, shall be binding on the assured and this company as to the amount of loss or damage only, and shall not decide the liability of this company under this policy, nor be deemed a waiver by this company of its right to contest in the courts its legal liability for any cause to pay the amount so appraised; and such written request shall designate a time and place for holding such appraisal and for selecting such appraisers.No suit against the company for the recovery of any claim or loss under this policy shall be sustainable in any court of law or chancery until an award shall have been made, showing the amount of loss, when either party have demanded as aforesaid an appraisal; and said appraisal and award shall be a condition precedent to any liability whatever upon the part of this company."

After the loss occurred an adjuster visited the premises and attempted to adjust the loss, but was unable to do so.He thereupon, and on the 10th day of February, 1898, gave notice that he should rely on the arbitration clause of the policy, named an arbitrator, and fixed the date when the parties should meet to arbitrate as February 21, 1898.Plaintiff responded to this, requesting a postponement until February 28th, or later, and asked the company to prepare a stipulation for arbitration.On the 2d day of March, the parties met and signed an arbitration agreement, which, among other things, provided "that John H. Harte and B. H. Freeland shall appraise and ascertain the sound value of, and the loss upon, the property damaged and destroyed by fire of November 7th, 1897, as specified below.""Provided that the said appraisers shall first select a competent and disinterested umpire who shall act with them in matters of difference only.The award of two of them, made in writing in accordance with the agreement, shall be binding upon both parties to this agreement as to the amount of such loss.It is expressly understood that this agreement and appraisement is for the purpose of ascertaining and fixing the amount of sound value and loss and damage only to the property hereinafter described and shall not determine, waive or invalidate any other right or rights of either party to this agreement.The property on which the sound value and the loss are to be determined is as follows, to wit: The one and one-half story frame dwelling house situated on the northwest corner of block seventy-two in Onawa, Iowa.It is further expressly understood and agreed that in determining the sound value and the loss and damage upon the property, hereinbefore mentioned, the said appraisers are to make an estimate of the actual cost of replacing or repairing the same, or the actual cash value thereof, at and immediately preceding the time of the fire, and in case of depreciation of the property from use, age, condition, location or otherwise, a proper deduction shall be made therefor."

It was afterward discovered that Freeland, who had been named by plaintiff, was a relative; and on the 3d of March plaintiff wrote, requesting that one Messing be substituted in place of Freeland.On the 28th day of July the appraisers met, and duly subscribed to an oath to perform their duties as such.They also appointed one Clarke, of Sioux City, Iowa an umpire, and on the 29th day of July, after inspecting the property, made the following award: "To the Parties in Interest: We have carefully examined the premises and remains of the property hereinbefore specified, in accordance with the foregoing appointment, and have determined the sound value to be twelve hundred dollars and the loss and damage to be two hundred seventy dollars and thirty-six cents.Witness our hands this 29th day of July, 1898.John H. Harte.Gotlieb Messing."There seem to have been no differences between these arbitrators or appraisers, and they did not call upon the umpire, Clarke.Indeed.Clarke never left his home, at Sioux City.Plaintiff was not content with the award and commenced action against the company February 11, 1899, by serving notice upon the Auditor of State, under statutes providing for such service.The original petition was filed April 5, 1899, but the amended and substituted one, on which the case was tried, was not filed until October 16, 1899.On June 6, 1901, and after the cause had been submitted to the court, an amended reply was filed, which attacked the arbitration because no notice was given plaintiff thereof.A motion was made to strike this reply, which was overruled; but, as defendant assigns no error on the ruling, this order cannot be reviewed.

Much is said in argument with reference to rulings of the court in transferring and in refusing to transfer the case from one docket to the other; but as no exceptions were taken to these rulings, and no errors are assigned thereon, these matters cannot be considered.The case was tried as in equity, and will be treated here as an equity cause.

Before the case was tried, defendant offered to confess judgment for the amount of the award, with costs to date of offer, but this was refused.It is contended that no action would lie until the award or appraisal had been set aside.This is a suit to set it aside, and to recover judgment for the amount of the loss.In view of the record presented to the trial court, it had the right not only to pass upon the validity of the award, but, in the event it concluded to set it aside, to render judgment for the amount of the loss under the policy.Further, it is argued that defendant was entitled to a jury trial to determine the amount of the loss.This question is not properly presented, for the reason that the cause was transferred to the equity docket on motion of the plaintiff, and defendant took no exception to the ruling.

Next it is contended that the court erred in setting aside the appraisal or award, and this contention presents the controlling point in the case.Plaintiff says that the award was invalid for many reasons, but the following are the only ones which have any support in the evidence; (1)...