Niagara Ins. v. Bishop

Opinion of toe Court, Harker, P. J. The main question involved in this controversy, is the one raised by the special pleas, that the action was commenced before the appraisal undertaken by appraisers appointed ■was completed, and while such appraisal was pending, and the special replication that the completion of the appraisal was defeated by the delay and unfair action of the company and its refusal without sufficient cause to complete the same. The appraisal clause in the contract of insurance provided that in the event of a disagreement as to the amount of loss between the insured and the insurer, the loss should be ascertained by two disinterested appraisers, the insured and the company each selecting one, who were to first select an umpire, with power to decide any difference between them. Another clause provided that no loss should become payable until sixty days after the making of the appraisers’ award where an appraisal had been required. That such provisions are legal, and that a compliance therewith is a condition precedent to the bringing of suit, is held by a long and unbroken line of decisions in this country. May on Insurance, Sec. 493; Wood on Insurance, 493; Johnson et al. v. Humboldt Ins. Co., 91 Ill. 92; Hamilton v. Liverpool & L. & F. Ins. Co., 136 U. S. 242; Adams v. Ins. Co., 70 Cal. 198; Reed v. Washington Ins. Co., 138 Mich. 572; Wolf v. Liverpool & L. G. Ins. Co., 50 N. J. 453; Davenport v. Ins. Co., 10 Daly 355. We do not care to express any opinion as to the conduct of either appellee or the adjuster in their efforts to agree upon an estimate, a matter discussed with great freedom by counsel. ■ It is sufficient to say they were unable to agree and that each selected an appraiser to make an estimate for them, and that the appraisers entered upon a discharge of the office to which they had been nominated. As we view the case the only question of importance is, which of these appraisers is responsible for the suspension of their work and the failure to complete the appraisal ? When appointed they stood for the parties appointing them. Hoag for Bishop and Doulin for the company. If either improperly neglected his duty, the party appointing him was responsible for such neglect. If either insisted upon an unreasonable requirement which had the effect to defeat an appraisal his principal was responsible therefor. If either refused to go on with the work, or acted in such bad faith as to prevent the accomplishment of the appraisement within a reasonable time, the principal of the other appraiser was absolved from further compliance with that provision of the policy. In that case, it must be said, the proceedings for appraisal were not pending but had been abandoned. It is, perhaps, unfortunate that Doulin and Hoag did not at the outset select an umpire. They labored for two days trying to make an estimate without, but were so widely apart on the different items of construction that no agreement was reached. Doulin then returned to his home, insisting that it would be necessary to call in a third man. Instead of returning to Elgin and making further effort toward an appraisement, he wrote to Hoag in a few days proposing payment of a certain sum for the loss, which Hoag declined as unreasonable and unjust. Hoag wrote asking him to return, expressing the opinion that they could, after going through the entire estimate, reach an agreement. An umpire was not selected then because Hoag urged the appointment of a man from Elgin, or the county in which the ice-house was located, while Doulin urged the appointment of a man from Chicago, Bloomington, or elsewhere out of the county. Hoag objected to the men proposed by Doulin, because they were from a distance and he knew nothing of their fitness for the place. Doulin objected to the men proposed by Hoag, as they were local builders and Hoag knew them. One of them lived at Aurora, one at Elgin, one at Dundee and others at Elgin. We see nothing unreasonable in the contention of Hoag, that the umpire should be selected from Elgin or elsewhere in the county. It does not appear that either of the individuals proposed by him was an unfair man, or one over whom either he or Bishop had any undue influence. Indeed, it seems to us that a capable, honest and disinterested man residing in the county where the loss occurred, would, by reason of his acquaintance with the value of labor and material there, be preferable to one selected from a distance. Doulin made no objection to any man proposed by Hoag because of incompetency or unfairness. Under the circumstances, it would be unjust to allow the technical defense interposed to prevail. We prefer, instead, to hold that the proceedings for appraisal were abandoned and that the abandonment was attributable to the conduct of appellant’s appraiser. The above views dispose of the contention that the court erred in overruling the motion made at the close of plaintiff’s testimony to find in favor of the defendant. We attach but little importance to the contention that the court admitted improper evidence for the plaintiff and excluded proper evidence offered by the defendant. The case was tried by the court, who, as is usually the case, received, matters offered in proof more freely than he would have done had the case been tried by a jury; but it does not appear that the defendant was prejudiced thereby. The price list of lumber offered was properly refused. A careful examination of the evidence satisfies us that the damages allowed by the court were not excessive. We do not care to enter upon a discussion of the propositions of law submitted and refused. Our views upon some of them sufficiently appear in the discussion of the main point of contention above set forth. Some of them were proper and could have been' given, but we are so clearly of the opinion that substantial justice has been done by the finding and judgment of the Circuit Court that we shall not reverse because propositions were refused that should have been given. Judgment affirmed.