Yost v. McKee

• Decision Date: 04 January 1897
• Docket Number: 89
• Citation: 179 Pa. 381,36 A. 317
• Parties: William Yost v. John D. McKee et al., and Dwelling House Insurance Company, Garnishee and Appellant
• Court: Pennsylvania Supreme Court

36 A. 317

179 Pa. 381

William Yost v. John D. McKee et al., and Dwelling House Insurance Company, Garnishee and Appellant

No. 89

Supreme Court of Pennsylvania

January 4, 1897

Argued October 30, 1896

Appeal, No. 89, Oct. T., 1896, by Dwelling House Insurance Company, from judgment of C.P. No. 3, Allegheny Co., Nov. T 1894, No. 627, on verdict for plaintiff. Affirmed.

Execution attachment by a judgment creditor of John D. McKee, to recover from the Dwelling House Insurance Company the amount due said McKee on a policy of fire insurance. Before McCLUNG J.

The garnishee denied liability under the policy of insurance because the insured was not the sole and unconditional owner of the property as required by the policy, and the issue was between it and the plaintiff who was a judgment creditor of the insured. The latter died pending the suit, without leaving any issue, and under thirty years of age; the significance of which, with other facts, will appear from the opinion of the Supreme Court. The defendant also denied liability in this suit because the insured had refused to submit the matters to arbitration under the terms of the policy which provided that in case the parties could not agree upon the loss, appraisers should be chosen to adjust it. The court submitted the case to the jury on the question whether the value of the house at the time of the fire was equal to the amount of the policy, and what that value was. The court instructed the jury that, under the will of David McKee, John McKee took an estate in fee. The court also instructed the jury that the refusal to arbitrate did not constitute a sufficient defense to the action.

Verdict and judgment for plaintiff for $3,195. Defendant appealed.

Error assigned among others was entry of judgment on the verdict.

Judgment affirmed.

Samuel J. Graham and Willis F. McCook, for appellant. -- The provision for arbitration should be upheld: Hamilton v. Liverpool etc., Ins. Co., 136 U.S. 242; Rohnteiler v. Ins. Co., 57 F. 562; McNeese v. Southern Ins. Co., 61 Mo.App. Rep. 335; Boyles' Sons v. Ins. Co., 169 Pa. 349; German American Ins. Co. v. Hocking, 115 Pa. 404.

The insured was not an unconditional owner: Provenchere's App., 67 Pa. 462; Grim's App., 1 Gr. 209; 4 Kent's Commentaries, 57; Nicholson v. Bettle, 57 Pa. 384; Hall v. Robinson, 3 Jones, 348; Jauretche v. Proctor, 48 Pa. 466; McWilliams v. Nisly, 2 S. & R. 507; Langdon v. Ingram, 28 Ind. 360; Stewart v. Brady, 3 Bush. 623; Earle v. McAlpine, 3 Grant Ch. (Ontario), 161; Hill v. Hill, 5 Barb. N.Y. 419; Imp. Fire Ins. Co. v. Dunham, 117 Pa. 475.

William Yost, for appellee. -- This court has repeatedly declared the clause of arbitration in the policy to be revocable, and that it cannot oust the jurisdiction of the courts: Wright v. Ins. Co., 110 Pa. 29; German-American Ins. Co. v. Hocking, 115 Pa. 404; Gray v. Wilson, 4 Watts, 41; O'Neil v. Ins. Co., 166 Pa. 72; Boyle v. Ins. Co., 169 Pa. 349; Rea's App., 13 W.N.C. 546; Monongahela v. Fenlen, 4 W. & S. 210; Lauman v. Young, 31 Pa. 306.

In this case the arbitration clause could in no event avail the garnishee: Reed v. Penrose, 36 Pa. 229.

The title of the insured was in fee simple: McIntyre v. McIntyre, 123 Pa. 330; McCullough v. Gilmore, 11 Pa. 370; Act of April 8, 1833, P.L. 249; Fahrney v. Holsinger, 65 Pa. 391; Manderson v. Lukens, 23 Pa. 31; Passmore's App., 23 Pa. 381; Rewalt v. Ulrich, 23 Pa. 388; Womrath v. McCormick, 51 Pa. 504.

The policy would not be avoided by the alleged conditional limitation: Kronk v. Ins. Co., 91 Pa. 300; Chandler v. Commerce Ins. Co., 88 Pa. 223; Hope Mut. Ins. Co. v. Brolaskey, 35 Pa. 282; Susquehanna Ins. Co. v. Staats, 102 Pa. 529; Collins v. London Assurance Co., 165 Pa. 298; Lebanon Ins. Co. v. Erb, 112 Pa. 149; Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Imperial Co. v. Dunham, 117 Pa. 460; Elliott v. Ins. Co., 117 Pa. 548; Kenton Ins. Co. v. Wigginton, 89 Ky. 330; Lawrence v. Ins. Co., 43 Barb. 479; Burson v. Fire Assn., 136 Pa. 267.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE McCOLLUM:

The refusal of the insured to comply with the condition in the policy in regard to the appointment of appraisers to ascertain the amount of the loss in case of a disagreement concern it does not constitute a good defense to this action. The condition was nothing more than an agreement to refer to three appraisers to be appointed at a future time, to determine the amount of the loss by the award of any two of them. It was a revocable agreement and the insurance company is in no position to complain, here or elsewhere, of the revocation of it. It has not shown that it admitted the validity of its policy, or its liability under it, but on the contrary it has, in the language of the learned judge of the court below, "always denied its liability on ground which, if sustained, cut up the contract by the roots." The foregoing views are fully warranted and sustained by the decision of this Court in Mentz v. Ins. Co., 79 Pa. 478. In Assurance Co. v. Hocking, 115 Pa. 407, it was distinctly held in an opinion by Mr. Justice CLARK that where an agreement to arbitrate does not provide for submitting matters in dispute to any particular person or tribunal named, but to one or more persons to be eventually chosen by the parties, it is revocable by either party. Further consideration of this branch of the insurer's contention is deemed unnecessary, because the cases cited furnish a sufficient answer to it.

Another defense to the action is that the interest of the insured in the property destroyed was "other than unconditional and sole ownership," and this depends on the construction of the will by which he acquired title to it. The property destroyed was a dwelling house included in the devise by David McKee of his homestead to John D. McKee "to be his forever for his own proper use," subject only to a restriction of alienation until he attained the age of thirty years, which in his case was for the period of thirteen years. In Jauretche v. Proctor, 48 Pa. 466 WOODWARD, C.J., said: "A partial restriction, such as not to alien to a particular person or for a limited time, may be supported, but a general restraint of alienation when annexed to an absolute estate is void, upon the familiar principle that conditions repugnant to the estate to which they are annexed bind not." This is in accord with the view expressed by TILGHMAN, C.J., in McWilliams v. Nisly, 2 S. & R. 507, and by COULTER, J., in McCullough v. Gilmore, 11 Pa. 370. It is said in 6 Am. & Eng. Ency. of Law, p. 877, note 4, that "the weight of authority seems to be against such restraints however limited as to time." The ground on which a partial restraint of alienation is supported is that it is not inconsistent with a reasonable enjoyment of the fee: McWilliams v. Nisly, supra, and Libby v. Clark, 118 U.S. 250. While the cases on this point are conflicting, the Pennsylvania cases we have cited seem to sustain a partial restraint of alienation. But we may assume that the restriction in...