Wallace v. German-American Ins. Co.

Decision Date01 July 1882
Citation41 F. 742
PartiesWALLACE v. GERMAN-AMERICAN INS. CO.
CourtU.S. District Court — Northern District of Iowa

Shiras Van Duzee & Henderson, for plaintiff.

Hubbard & Clark and Henry Rickel, for defendant.

McCRARY J.

This is an action upon a policy issued by defendant to plaintiff to insure him against loss by fire upon a certain building therein described. There was a trial by jury, and a verdict for plaintiff for $1,788.78. The case is now before the court on a motion for a new trial. It is insisted that, under the terms of the policy sued on, an arbitration fixing the amount of the loss is a condition precedent to plaintiff's right to maintain this action. The same question was raised at an early stage of this proceeding by demurrer to the replication, and was decided adversely to the defendant. 1 McCrary, 355, 2 F. 658. We are asked to reconsider the question upon the ground that it was not fully argued by counsel at the time of the hearing upon demurrer. There can we think, be no valid objection upon the part of the court to reconsidering, upon final hearing, any question passed upon in the preliminary proceedings, especially in a case where our judgment must be final; the sum involved not being sufficient to authorize a writ of error. The policy contains the following provisions: In the ninth clause or condition it is provided that--

'In case differences shall arise touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial arbitrators, whose award in writing shall be binding on the parties as to the amount of such loss or damage, but shall not decide the liability of the company under this policy.'

The eleventh clause or condition contains the following:

'It is furthermore hereby provided and mutually agreed that no suit or action against the company for the recovery of any claim by virtue of this policy shall be sustainable, in any court of law or chancery, until after an award shall have been obtained, fixing the amount of such claim, in the manner above provided.'

It is undoubtedly competent for the parties to a contract to agree that damages claimed by either party under it shall be ascertained by an arbitration, and that no suit shall be brought until after such an arbitration has been had; but a contract which is intended to deprive the parties to it of the right of an appeal to the courts for redress, or to place conditions and limitations upon that right, should be strictly construed. And this is especially true of contracts which, like the one before us, embody numerous special provisions and conditions, prepared and printed by one of the parties. By a liberal construction of the above-quoted provisions of the policy, it might be held that the assured was bound, as a condition precedent to the right to sue for his loss, to request the insurer in writing to enter into an arbitration; but it cannot be said that, strictly construed the language must necessarily have this meaning. The first provision above quoted is that, in case of differences touching any loss, they shall, at the written request of either party, be submitted to...

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19 cases
  • Sadler v. Radcliff
    • United States
    • Alabama Supreme Court
    • January 20, 1927
    ... ... his prejudice. Hopwood v. Corbin, 63 Iowa, 218, 18 ... N.W. 911; McEvoy v. Security Fire Ins. Co., 110 Md ... 275, 73 A. 157, 159, 22 L.R.A. (N.S.) 964, 132 Am.St.Rep ... 428; Wallace v ... ...
  • Independent School Dist. No. 35 v. A. Hedenberg & Co.
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    • January 2, 1943
    ...F. Ins. Co., 63 Mich. 633, 30 N.W. 350, 6 Am. St.Rep. 338; Phoenix Ins. Co. v. Badger, 53 Wis. 283, 10 N.W. 504; Wallace v. German-American Ins. Co., 8 Cir., 41 F. 742. The test for determining whether there has been a waiver in a particular case is stated by the author of an exhaustive ann......
  • Clemens v. Royal Neighbors of America
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    • North Dakota Supreme Court
    • February 28, 1905
    ... ... gestae. Fitch v. Popular Life Ins. Co., 59 N.Y. 557, ... 17 Am. Rep. 372; Bridges v. Eggleston, 7 Am. Dec ... 212; Rawls v ... v. Benefit League of Minnesota, 79 N.W. 320; Wallace ... v. German Ins. Co., 41 F. 742; Rev. Codes, sections 3912 ... and 3778 ... Inghram v. National Union (Iowa) 103 Iowa 395, 72 ... N.W. 559; Wallace v. German-American Ins. Co. (C. C.) 4 ... McCrary's Cir. Ct. Rpts 123, 41 F. 742 ...           [14 ... ...
  • Bellevue Roller-Mill Co. v. London & L. Fire Ins. Co.
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    • Idaho Supreme Court
    • February 4, 1895
    ...of insurance are written for the purpose of indemnity and that they should be construed in favor of the assured. (Wallace v. German-American Ins. Co., 41 F. 742; Pennsylvania Mut. Co. v. Wiler, 100 Ind. 92, 50 Rep. 769; Friezen v. Allemania Fire Ins. Co., 30 F. 352; 1 May on Insurance, sec.......
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