Gragg v. Northwestern National Insurance

1. FIRE INSURANCE: Arbitration: Demand. If a fire insurancé policy mates provision for arbitration in case the parties disagree, an action instituted without such arbitration or a demand for it, is prematurely brought. 2. -: -: -. But after an action is dismissed, or the judgment reversed, on account of no demand for arbitration, such demand can then be made and the insured be capacitated to bring his action again. 3. -: -: -: Waiver. If the insured requests an arbitration and no attention is paid thereto and afterwards he renews the request by letter, which the insurer ignores, this is evidence which will support a verdict of waiver or refusal. 4. -; -; -: Waiver: Interest. If there is a waiver of the provision for arbitration, it amounts to taking it out of the policy, and interest will be properly allowed without reference to any provision declaring nothing due on the policy except the amount fixed by the arbitrators.

Appeal from Bates Circuit Court. — Son. O. A. Denton, Judge. There was a disagreement as to the amount of loss when the insured offered a sum in settlement, which insured refused to accept and thereupon the appraisal clause of the contract immediately became operative and no right of action could accrue to insured until there had been an appraisal of the amount of his loss or an effort put forth by assured to secure an appraisal. An action instituted before that, had been done, is prematurely brought. Murphy v. Insurance Co., 61 Mo. App. 823; Murphy v. Insurance Co., 70 M'o. App. 78; McNees v. Insurance Co., 69 Mo. App. 238; Stevens v. Insurance Co., 120 Mo. App. 88; Zalesky v. Insurance Co., 108 Iowa 341, 79 N. W. 69; Zalesky v. Insurance Co., 71 N. W. 566; Williamson v. L. & L. & G., 122 Fed'. 59; Gasser v. Sun. F. Ofs., 42 Minn. 315, 44 N. W. 252; Staut v. Phoenix, 56 Atl. 691, 65 N. J. Eq. 566; Graham v. Insurance Co., 34 Ins. L. J. 193, 79 N. E. 930 (Ohio). No cause of action had accrued June 29, 1908. It was therefore erroneous to allow interest from October 1, 1906. Thwing v. Insurance Co., Ill Mass. Ill; Mueller v. Insurance Co., 87 Pa. 399; Beatty v. Insurance Co., 66 Pa. 9; Unsell v. Hartford L. & A., 32 Fed. 446. (1) There never was a disagreement as to thje- actual cash value of the property destroyed by this fire and until there was such a disagreement an appraisal was not required. Defendant’s adjusters simply offered to pay plaintiffs about |6200 in full satisfaction, which was refused. Murphy v. Insurance Co., 61 Mo. App. 323; Stevens v. Insurance Co., 120 Mo. App. 88; Ball v. Insurance Co., 129 Mo. App. 34; James v, Insurance Co., 135 M'o. App. 247. (2) The arbitrary conduct on the part of defendant’s. adjusters estops the defendant from defeating this action by invoking the provision for arbitration contained in the policy. Cullen v. Insurance Co., 126 M'o. App. 412. (3) Instructions numbered 2 and 4 were correctly given, yet if the giving of same was error defendant cannot be heard to complain since the case, was tried without the question of res judicata being raised at any time or in any manner. Bielman v. Railroad, 50 Mo. App. 156; Scott v. City of Nevada, 56 Mo. App. 189; McGon-igle v. Daugherty, 71 Mo. 259; Holmes v. Braidwood, 82 Mo. 610; Thorp v. Railroad, 89 Mo. 650. (4) When no direction is given on a former appeal in remanding a cause for new trial, then there is no adjudication made of the facts at issue in the case and the matter at issue re••mains as it was at first unhampered by anything which occurred on the former appeal. Kelly v. Thuey, 143 M'o. 422; Chemical Co. v. Lackawanna Line, 78 Mo. App. 314; Bird v. Sellers, 122 Mo. 23; Wilson v. Beck-with, 140 Mo. 370; Baker v. Railroad, 147 Mo. 140; Bealy v. Smith, 158 Mo. 522; Fuchs v. City of St. Louis, 167 Mo. 652. (5) The loss being total there could be no appraisal because an appraisement of property wholly destroyed would be an anomaly and this suit was not prematurely brought. O’Keefe v. Insurance Co., 140 Mo. 558; Baker v. Insurance Co., 57 Mo. App. 559; Jacobs v. Insurance Co., 61 Mo. App. 572; Marshall v. Insurance Co., 80 Mo. App. 18; Stevens v. Insurance Co., 120 Mo. App. 106. (6) This suit was not prematurely brought because plaintiffs first demanded an appraisal of this loss the middle of July, 1908, and again August 4, 1908, which defendants refused to do. This refusal strikes the condition from the policy. Dautel v. Insurance Co., 65 Mo. App. 49; M’cNess v. Insurance Co., 69 Mo. App. 366; Carp v. Insurance Co., 104 Mo. App. 502; Fowble v. Insurance Co., 106 Mo. App. 527; Hanna & Co. v. Insurance Co., 109 Mo. App. 155; Burgess v. Insurance Co., 114 Mo. App. 169; Ball v. Insurance Co., 129 Mo. App. 44; McCulloch v. Insurance Co., 118 Mo. 618. (7) The question of vexatious delay was fully and fairly submitted to the jury on instructions, and this court will not review their finding. Blackwell v. Insurance Co., 80 Mo. App. 75; Kellogg- v. Insurance Co., 133 Mo. App. 227; Brown v. . Railway, 45 Mo. 227; Lockwood v. Insurance Co., 47 Mo. 50; Keller v. Insurance Go., 198 Mo. 460; R. S. 1899, sec. 8012. (8) The assured fully complied with the provisions of the Iron Safe Clause in the policy sued on, and turned over to the defendant’s adjusters on demand all books, inventory and invoices required under said clause, and plaintiffs had one year from date of the policy sued on in which to make a new inventory. Howerton v. Insurance Co., 105 Mo. App. 575; Malin v. Insurance Co., 105 Mo. App. 641; Carp v. Insurance Co., 116 Mo. App. 535. (9) Plaintiff’s instruction No. 1 excepted to by defendant properly instructed thie jury to allow interest from October 1, 1906. Risley v. Andrew County, 46 Mo. 382; Neosho City Water Co. v. City of Neosho, 136 M'o. 498; State ex rel. v. City of Neosho, 203 Mo. 57; Field v. Baum, Admr., 35 Mo. App. 511; R. S. 1899, sec. 3705.