Zallee v. Laclede Mut. Fire & Marine Ins. Co.

• Decision Date: 31 October 1869
• Citation: 44 Mo. 530
• Parties: JOHN C. ZALLEE, Respondent, v. THE LACLEDE MUTUAL FIRE AND MARINE INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

44 Mo. 530

JOHN C. ZALLEE, Respondent,

v.THE LACLEDE MUTUAL FIRE AND MARINE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Hill & Jewett, for appellant.

Krum, Decker & Krum, for respondent.

I. The agreement to submit the matters in dispute is a submission within the statute; and, as it was not shown that the arbitrators took the oath prescribed in the statute, their award is invalid. (Toler v. Hayden, 18 Mo. 399; Fassett v. Fassett, 41 Mo. 516; Walt v. Huse, etc., 38 Mo. 210.)

II. The provisions of the charter of the company, the policy sued on, and conditions annexed, do not change the question. It is still an agreement to submit the matter in dispute to arbitration.

CURRIER, Judge, delivered the opinion of the court.

This is a suit on an insurance policy. The insured goods, or a portion of them, having been damaged by fire, the parties, in pursuance of the provisions of the policy, agreed in writing upon a board of appraisers to examine the injured goods and estimate and determine the amount of the plaintiff's loss thereon. The persons agreed on made the required examination, and assessed the plaintiff's damage at $302.44. The appraisers were not sworn. The result proved unsatisfactory to the plaintiff, and he now treats the appraisal as void, and seeks to recover damages independently of it. The appraisal is supposed to be void for the reason that the appraisers were not sworn. This view of the case rests upon the theory that the appraisal was the result of a submission to arbitration under the statute in relation to arbitrations and references (Gen. Stat. 1865, ch. 198), the appraisers having been appointed in writing.

It has always been deemed sound policy to encourage the adjustment of private difficulties and misunderstandings through the instrumentality of an arbitration. The results of such proceedings are favorably considered and liberally construed. Whether this policy would not have been better conserved by treating awards not sustainable under the statute as awards under a submission at common law, and therefore only subject to common-law tests of their sufficiency, it is not necessary here to inquire. It is well, however, not to overlook the established principles of the law on this subject, in passing upon the transaction under consideration, in order to the avoidance of an erroneous classification of it, thereby unnecessarily enlarging the number of void private adjustments. These adjustments, without an appeal to the courts, as already observed, it is the policy of the law to encourage.

The question raised by this record is this: was the transaction described, in the accepted legal sense of these terms, a submission to arbitration? Or was it an appraisal only?--something less than an arbitration. If it was an arbitration, in the legal sense, and the arbitrators had been sworn, then the antecedent cause of action would have been merged in the award. The award would then have become the ground of action, or of proceedings, in the Circuit Court. But it has not been claimed that the finding of the appraisers, had they been sworn, would have merged in itself the prior cause of action. No such view has been taken of the subject. The award, or finding, has been used, or sought to be used, as evidence conclusive, as to the amount of damage, but not as a bar to the action.

A submission to arbitration, in the legal sense, implies contesting parties and a subsisting controversy. But there was no controversy here when the original agreement, fixing the method of ascertaining the quantum of damages in case of loss, was entered into. The agreement...