Summerfield v. North British & Mercantile Ins. Co. , 62 F. 249 ( 1894 )

PAUL, District Judge

(after stating the facts as above). The stipulation between the parties being that the defendant company defends the action on no other grounds than that raised by its special plea, the sole question for the court to decide is that raised by said plea, namely, has the plaintiff ihe right to bring and maintain this action, there having been no appraisement of the loss sustained by her for which she claims damages? This case resembles, in some of its features, the case of Hamilton v. Liverpool, etc., Ins. Co., 136 U. S. 242, 10 Sup. Ct. 945, but there are material differences between the two. In the case mentioned, the supreme court held that “a condition in a policy of Are insurance that any difference arising between the parties as to the amount of loss or damage of the property insured shall be submitted, at the written request of either party, to the appraisal of competent and impartial persons, whose award shall be conclusive as to the amount of loss or damage only, and shall not determine the question of the liability of the insurance company; that the company shall have the right; to take the whole, or any part, of the property at its appraised value; and that, until such appraisal and award, no loss shall be payable or action maintainable, — is valid; and if the company requests in writing that the loss or damage be submitted to appraisers in accordance with the conditions, and the assured refuses to do so unless the company will consent, in advance, to define the legal powers and duties of the appraisers, and, against the protest of the company, asserts and exercises the right to sell the property before the completion of an award, he can maintain no action upon the policy.” In this case, unlike the one; mentioned, there is no express condition in the policy of insurance that “until such appraisal and award no loss shall he payable or action maintainable,” though there is a provision that “no suit or action on this policy, for the recovery of any claim, shall be maintainable in any court of law or equity, until after full compliance by the assured with all the foregoing requirements,” one- of which requirements is that, “in the event of disagreement as to the amount of loss, the same shall if * * be ascertained by two competent, and disinterested appraisers;” and this, it is claimed by the defendant company, has ftp same effect as if there had been in the policy an express condition that, until an appraisal and award had been made, no action shall be maintainable for the recovery of any claim under the policy, or, in the language of the defendant company’s special plea, that “said appraisal and estimate * * under said contract * * ⅞ was a legal condition precedent to the bringing of this suit.” Inasmuch as a, stipulation in a contract making a condition precedent to the bringing of a suit upon such contract tends to oust the courts of their proper jurisdiction under our laws for deciding controversies between suitors, for which the courts are established, it may at least be a subject of grave inquiry whether such a condition is valid unless expressly stated in such contract, and not a mere inference to be drawn from ihe terms of the contract. As was said in Hamilton v. Liverpool, etc., Ins. Co., ubi supra:

“Such, a stipulation, not ousting' the jurisdiction of the courts, but leaving the general liability to be judicially determined, and simply providing a reasonable method of estimating and ascertaining the amount of the loss, is unquestionably valid according to 11it> uniform current of authority iu England and in this country.”

But it cannot be contended tliat, in such, a case as this, an appraisal of the loss is an absolute sine qua non to the bringing of a suit. If it were, all that an insurance company would have to do in order to avoid payment of a loss against .which it had insured its patron would be to refuse to name an appraiser, or otherwise arbitrarily prevent an appraisement. A stipulation for an appraisement should probably have for its sole object the ascertainment of the amount of the loss in the. event that the parties cannot agree between themselves as to the amount of the loss. Under‘such a stipulation, no appraisement becomes necessary, or is contemplated, until, after honest effort to do so, the parties cannot agree as to the amount of the loss. The correspondence in this case, which is the only evidence submitted to the court, discloses the following-facts: Soon after the fire occurred which consumed the property for loss of which this suit is brought, the plaintiff notified the defendant company of said fire, and presented her claim for the loss she had sustained. The defendant company was not satisfied with the proofs of the loss, and demanded fuller proofs, inventories, schedules, and detailed statements. The plaintiff replied, and undertook to comply with these requirements, but still failed to satisfy the defendant company. Her letter in which she undertook to do this is dated April 25th, and on May 19th, after a delay of 24 days, the defendant company replied to it, requiring her to furnish information as to the value of the bricks, etc., which remained unconsumed after the fire. The plaintiff again undertook to comply with the requirements of the defendant company in a letter dated May 21st. Receiving no reply to this letter, she employed counsel, as is apparent from the correspondence, though not stated. Her counsel, it appears from the correspondence, commenced the correspondence with the defendant company by writing it a postal card, which appears to have been dated on the 29th of May, but this postal card is not among the correspondence submitted in evidence. On Juñe 8th the defendant company, in reply to said postal card, wrote to the plaintiff’s counsel, renewing the requirements for further proofs, etc. On June 14th the plaintiff’s counsel replied to the defendant company, inclosing supplemental proofs, invoices, etc., and demanding that the defendant company at once arrange to settle the difference with the plaintiff, and ascertain the amount of the loss by agreement with her, or by arbitration or appraisement. As the matter of an appraisement of the loss is the most conspicuous feature in this case, it may be proper to note that this is the first suggestion or mention, anywhere in the correspondence, of an ap-praisement, and that it was made by the plaintiff, and not by the defendant company. The correspondence was continued at considerable length between the parties, both expressing a willingness and desire for an appraisal of the loss upon the terms of the policy. Each party proposed to the other an agreement for an appraisal, or, as it is called, a form of submission, between which there were material differences; and the contention between the parties in regard to Hie forms of submission proposed by I hem, respectively, is the very root of the issue before the court. The form of submission proposed by the plaintiff provided that the appraisers “shall make a careful appraisement, pursuant to the terms and conditions” of the policy, “of the actual cash value,” etc., following the phraseology of the policy itself. The court is of opinion that the form of submission proposed by the defendant company was not in accordance with the provisions of the policy. It defines and imposes on the appraisers duties and power’s not prescribed or provided for in llie policy, such as the ascertainment of the cost of excavations, value of walls, materials, or any portion of said building saved, as well as depreciation on account of age, use, neglect, and location, and the difference in value, if any, between a new or repaired building and the one insured, and to deduct such values from the amount of the damage. And the defendant company refused to submit to an appraisement except upon the tonus of the form of submission proposed by it, whereby it placed itself in the attitude of the plaintiff Hamilton in the case of Hamilton v. Liverpool, etc., Ins. Co., ubi supra; and under the authority of that decision, and the authorities therein cited, judgment must be entered in this case for the plaintiff. See. also, Hamilton v. Home Ins. Co., 137 U. S. 370, 11 Sup. Ct. 133, and the authorities there cited.