A provision in a policy of fire insurance, that
"in case differences shall arise touching any loss or damage,
after proof thereof has been received in due form, the matter
shall, at the written request of either party, be submitted to
impartial arbitrators, whose award in writing shall be binding on
the parties as to the amount of such loss or damage, but shall not
decide the liability of the company under this policy"
cannot be pleaded in bar of an action on the policy unless the
policy further provides that no such action shall be brought until
after an award.
This was an action, brought June 26, 1886, upon a policy of
insurance, numbered 3,190, by which the Home Insurance Company of
New York insured Robert Hamilton for one year from February 23,
1886, on a stock of tobacco in his warehouse at 413 and 415 Madison
street in Covington in the State of Kentucky, against loss or
damage by fire to the amount of $5,000, "to be paid sixty days
after due notice and proofs of the same shall have been made by the
assured and received at the office of the company in New York." The
policy, after providing that in case of loss, the assured should
forth with give notice, and as soon afterwards as possible furnish
proofs of loss, with a magistrate's certificate, submit to
examination on oath, and produce books and vouchers,
Page 137 U. S. 371
and copies of lost books and invoices, further provided, among
other things, as follows:
"When personal property is damaged, the assured shall forth with
cause it to be put in order, assorting and arranging the various
articles according to their kinds, separating the damaged from the
undamaged, and shall cause an inventory to be made and furnished to
the company of the whole, naming the quantity, quality, and cost of
each article. The amount of sound value and of damage shall then be
ascertained by appraisal of each article by competent persons (not
interested in the loss as creditors or otherwise nor related to the
assured or sufferers) to be mutually appointed by the assured and
the company, their report in writing to be made under oath before
any magistrate or other properly commissioned person, one-half of
the appraisers' fees to be paid by the assured. The company
reserves the right to take the whole or any part of the articles at
their appraised value, and until such proofs, declarations, and
certificates are produced and examinations and appraisals permitted
by the claimant, the loss shall not be payable."
"But provided, in case differences shall arise touching any loss
or damage, after proof thereof has been received in due form, the
matter shall at the written request of either party, be submitted
to impartial arbitrators, whose award in writing shall be binding
on the parties as to the amount of such loss or damage, but shall
not decide the liability of the company under this policy."
"And it is hereby understood and agreed by and between this
company and the assured that this policy is made and accepted in
reference to the foregoing terms and conditions and to the classes
of hazards and memoranda printed on the back of this policy, which
are hereby declared to be a part of this contract and are to be
used and resorted to in order to determine the rights and
obligations of the parties hereto in all cases not herein otherwise
specially provided for in writing."
The answer admitted the execution of the policy and notice of
loss, put in issue the amount of loss, denied that the
plaintiff
Page 137 U. S. 372
ever delivered due proofs of loss or had performed the
conditions of the policy on his part, and, after reciting the
substance of the provisions above quoted, alleged as follows:
"And the defendant says that, differences having arisen touching
the loss and damage sustained by said plaintiff under said policy
and the amount thereof, the plaintiff claiming a loss of $40,000
and the defendant claiming and believing that it was slight and but
a very small part of said sum, and being unable to agree upon the
amount of said loss, this defendant requested and demanded in
writing that the amount of such loss and damage should be submitted
to and ascertained and determined by impartial arbitrators, whose
award in writing should be binding upon the parties as to the
amount of loss or damage, but should not decide the liability of
the company under said policy."
"And the said defendant further says that the plaintiff wholly
disregarded the terms and conditions of said policy in that
respect, and neglected and refused to have such arbitration, and
refused to choose or submit to arbitrators chosen in accordance
with the terms and provisions of said policy the amount of the loss
or damage by fire to the property covered by said policy, and
refused to be governed in the ascertainment of said loss by any of
the terms and conditions of said policy, and, against the protest
of the defendant, proceeded to and did sell all of said property at
auction. An arbitration and the ascertainment of the said loss
thereby, as provided in said policy, became impossible, and this
defendant was deprived of its rights and privileges under said
policy with respect to said property and the appraisement
thereof."
This defendant further says that the damage done to the property
insured was of such a nature as to require a careful and
scrutinizing examination to ascertain the injury thereto and loss
thereon, and that an appraisement by arbitrators, as required by
the terms and conditions of said policy, was of the greatest
importance to the defendant, and the only means under said policy
whereby the exact amount of damage and injury sustained by said
plaintiff upon said property could be determined, and the said
plaintiff, by the sale of said property,
Page 137 U. S. 373
and in disregarding the terms and conditions of said policy in
that respect, wholly deprived this defendant of the right to an
arbitration, as provided in said policy, and all other rights in
respect to the property so injured or damaged by said fire.
"The defendant further says that by reason of the failure and
refusal of said plaintiff to agree upon arbitrators to determine
the amount of the loss and damage so sustained as aforesaid, and
his refusal to submit the amount of such loss to arbitration in
accordance with the plain terms and provisions of said policy, and
the sale of said property so injured as aforesaid against the
written protest of the defendant, the said plaintiff is not
entitled to recover in this action, nor to have or maintain this
action against the said defendant."
The plaintiff filed a replication, denying these allegations of
the answer.
At the trial, the plaintiff introduced evidence tending to prove
a loss or damage by fire on April 16, 1886, to the amount of the
insurance, and the delivery of proofs of loss in accordance with
the policy, and put in evidence a policy of the Liverpool, London
& Globe Insurance Company on the same property; the defendant
introduced evidence tending to prove that the amount of loss or
damage was less, and there was put in evidence a correspondence in
writing between the parties or their authorized agents at
Cincinnati, the material parts of which were as follows:
April 26, 1886. Plaintiff to defendant:
"I enclose proof of loss under policy of your company, with
invoice attached, in compliance with the requirements of the
policy. If there is anything defective in the substance or form of
the above proof, please advise me thereof at once that I may
perfect the same to your satisfaction, and return the proof to me
in such case for that purpose. The property described and damaged
has been invoiced and arranged, and is ready for examination by
your company. Such examination must be made at once, for the reason
that I am obliged to occupy the premises in the prosecution of my
business, and each day of delay involves considerable loss and
expense to me. As before advised, I
Page 137 U. S. 374
propose to sent the entire stock to be sold at public auction in
a few days, whereof I will give you notice. It can be readily
inspected in a short time where it now lies."
April 27, 1886. Defendant to plaintiff: "Received of Robert
Hamilton papers purporting to be proofs of loss under Home
Insurance policy No. 3, 190."
April 28, 1886. Defendant and other insurance companies to
plaintiff:
"The undersigned, representing the several insurance companies
against which you have made claim for loss under their respective
policies of insurance upon stock in your tobacco factory, Nos. 413
and 415 Madison Street, Covington, Ky., claimed to have been
damaged by fire on April 16, 1886, beg leave jointly to take
exception to the amount of claim made, and to demand that the
question of the value of and the loss upon the stock be submitted
to competent and disinterested persons, chosen as provided for in
the several policies of insurance under which claim is made, and we
hereby announce our readiness to proceed at once with this
appraisement so soon as your agreement to the demand is declared.
We further desire jointly to protest against the removal, sale, or
other disposition of the property until such an appraisement has
been had, and to notify you that the insuring companies will in no
way be bound by such
ex parte action."
April 29, 1886. Plaintiff's counsel to defendant and other
insurance companies:
"Mr. Hamilton is not endeavoring to obtain any unfair advantage
or unfair adjustment of his loss against the companies. He had
believed that in view of the fact that the traffic in tobacco is so
large in this city, the substantially all of it at least
ninety-nine percent of the leaf tobacco business, is transacted by
sale at public auction, a sale of this tobacco presented the
fairest mode of ascertaining its actual value as it stands. It is
in substance and effect an appraisement in detail of every package
by the entire trade in this city. But in view of the fact that the
insurers seem to demand arbitration by arbitrators, and that you
propose to select a competent person, which we understand to mean a
man acquainted with the manufacture of tobacco, to act as
arbitrator in your behalf, Mr. Hamilton will accede to your
Page 137 U. S. 375
proposition upon the express understanding that the arbitrators
selected shall have a full opportunity to examine the stock of
tobacco, and that it shall then be sold at public auction in order
that its value thus ascertained, together with such other evidence
as either party may desire to offer, may be presented to the
arbitrators before they make their award. . . . If the proposed
arbitration is satisfactory, will you at once inform me of the
arbitrator selected by you and submit to me the form of agreement
for arbitration which you propose? Mr. Hamilton will do the like in
respect to the arbitrator selected by him."
April 30, 1886. Defendant and other insurance companies to
plaintiff's counsel:
"We must insist upon arbitration, in accordance with the terms
of our several contracts, without importing into it any conditions
as to the sale of the property. Such conditions would be
incompatible with the provisions of our several policies of
insurance and the rights of the insuring companies thereunder. As
soon as Mr. Hamilton indicates his readiness to proceed with the
arbitration called for, we will submit the name of an arbitrator,
and also a form of agreement for arbitration."
April 30, 1886. Plaintiff's counsel to insurance companies:
"Mr. Hamilton, and I in his behalf, deny that the arbitration in
the manner indicated is in violation of the terms of any of the
policies or imports any condition into it which the insured is not
entitled to insist upon or which is incompatible with the
provisions of the several policies of insurance or the rights of
the insurance companies thereunder. Mr. Hamilton is ready, and has
directed me to express his readiness, to proceed at once with an
arbitration which, as he understands it, is in substantial
compliance with the arbitration provided for in all the several
policies; but they are not alike in their provisions upon this
subject of arbitration, and a literal compliance with some of them
would be inconsistent with a literal compliance with others. The
only way, as it seems to me, that Mr. Hamilton or I in his behalf
can determine whether what you call the 'arbitration called for' is
what Mr. Hamilton understands to be the 'arbitration called for'
and is willing
Page 137 U. S. 376
to accede to is for you to indicate what you understand the
arbitration called for to be by submitting a form of agreement for
arbitration, or in some other mode indicating the specific terms of
the arbitration which you have demanded. I wish to say that, as I
understand the expression in my letter of the 29th, that 'it' (the
tobacco)"
"shall then be sold at public auction, in order that its value
thus ascertained, together with such other evidence as either party
may desire to offer, may be presented to the arbitrators before
they may make their award,"
does not in any wise call upon the companies to consent to a
sale of the property. Mr. Hamilton is quite ready to take upon
himself the responsibility of selling it. It simply requires that
the arbitration shall be commenced before the sale, when the
arbitrators may have an opportunity of examining the property, and
that the award shall not be made until after the sale has taken
place and the assured has had an opportunity to submit the result
of it, with other competent evidence, to the arbitrators before the
award is made
May 3, 1886. Insurance companies to plaintiff's counsel:
"In compliance with the request in your letter of April 30th,
addressed to the companies insuring Robert Hamilton, we herewith
enclose a form of agreement for 'submission to appraisers,' which
is in practical accordance with the conditions of the policies of
the several companies and which all the companies are willing to
sign and abide by the award reached thereunder. We must again
decline to entertain your proposition that the arbitrators, after
examining the stock, shall postpone their award until after the
stock shall have been sold, when the result of such sale, with
other evidence, shall be submitted to the arbitrators. We insist
that the arbitration provided for in such case by our policies is
in no sense a court for the hearing of evidence. The appraisers
may, in their discretion, seek any evidence they deem necessary for
their own full information and the forming of their own judgments
as to the value and damage of the goods. But we insist that under
the conditions of the several policies, there can be no abandonment
of the stock to the companies, and that after an award has been
reached, the companies have the right to take the stock,
Page 137 U. S. 377
in whole or in part at the appraised value. The companies
propose to stand upon the conditions of their policies, and decline
all propositions looking to a waiver thereof, or adding new and
inconsistent conditions thereto."
The principal part of the form of "submission to appraisers,"
enclosed in this letter, was as follows:
"It is hereby agreed by Robert Hamilton, of the first part, and
the several insurance companies, by their representatives, whose
names are hereunto affixed, of the second part, that _____ and
_____ shall appraise and estimate the loss by fire of April 16,
1886, upon the property of Robert Hamilton, as specified below and
as hereinafter provided. In case of disagreement, said appraisers
shall select a third, who shall act with them in matters of
difference only. The award of said appraisers, or any two of them,
made in writing in accordance with this agreement, pursuant to the
terms of the policies, shall be binding upon both parties, but it
is understood that this agreement and appraisement are only for the
purpose of fixing the sound value of the property immediately
before the fire and the loss or damage thereon occasioned by said
fire, and shall not waive, invalidate, or terminate the right of
the insurers to take said property at its appraised value, or any
other rights of either party hereto, but the same are to be
construed solely by reference to said policies."
May 4, 1886. Plaintiff's counsel to insurance companies:
"There can be no misunderstanding as to the position taken by
the companies and the assured in this matter. 1st. I understand the
companies demand that appraisers be selected by the companies and
the assured, who shall estimate the loss by their own judgment, and
without hearing the testimony of witnesses who may be called by
either party, and that the parties shall be bound by their report
or award as to the amount of the loss thus made. This Mr. Hamilton
declines to do. 2d. Mr. Hamilton is willing that the companies
jointly, or as they may arrange between themselves, shall make
their own appraisement through their own appraisers of the value of
the stock, and that they shall jointly, or either of them, with the
consent of the rest, have the right to take the stock,
Page 137 U. S. 378
in whole or in part at their appraisal. 3d. Mr. Hamilton has
made and makes no claim to abandon the property, and he has made
and makes no claim that the companies shall consent to the sale by
him of the damaged stock."
Enclosed in this letter, and signed by the plaintiff's counsel,
was the following:
"To the Liverpool and London and Globe Insurance Company, and
the companies jointly acting with it, in respect to the loss
sustained by Robert Hamilton on the property in Nos. 413 and 415
Madison Street, Covington, Ky.: Mr. Hamilton demands of the several
insurance companies an arbitration of the amount of the loss
sustained upon the goods covered by fire on the 16th day of April,
and will select an arbitrator to represent him in pursuance of the
provisions of the policy, it being stipulated in the agreement for
arbitration that the several companies and the assured shall be
duly notified of the time of the hearing by the arbitrators, and
that the arbitrators shall hear all competent legal testimony that
may be offered by either party, as well as personally examine the
damaged goods, in considering and awarding the amount of the
loss."
May 5, 1886. Insurance companies to plaintiff's counsel:
"Your communication of the 4th is at hand. We have nothing to
add to our letter of the 3d, and if, as we are made to understand,
Mr. Hamilton declines to consent to a form of 'submission to
appraisers' that does not provide for the introduction of 'all
competent legal testimony that may be offered by either party'
(under which provision, as you have repeatedly declared, Mr.
Hamilton would seek to present evidence based on a sale of the
property), we must accept your communication as a refusal to comply
with our request and with the conditions of the policies of
insurance, which are clearly incompatible with your wishes in the
matter."
May 7, 1886. Insurance companies to plaintiff's counsel:
"Referring to your letter of the 4th, setting forth your
understanding of the position taken by the two parties, permit me,
on behalf of the companies, to take exceptions to your first
statement, to-wit:"
"I understand the companies demand that appraisers be selected
by the companies and the assured, who
Page 137 U. S. 379
shall estimate the loss by their own judgment and without
hearing the testimony of witnesses who may be called by either
party, and that the parties shall be bound by their report or award
as to the amount of the loss thus made."
"This does not correctly state our position, which remains now
as stated in our communication of the 3d to-wit: 'The appraisers
may at their discretion, seek any evidence they deem necessary for
their own full information.' What we do object to and protest
against is the sale of the goods, or the consideration by the
appraisers of evidence founded on that fact or result. If the form
of 'submission to appraisers' we submitted contains any provision
or condition limiting or defining the duties of the appraisers and
not prescribed by the several policies, each company will submit
its own form, as we desire and demand a submission free from any
conditions imposed by either party."
The plaintiff also gave in evidence a letter from his counsel to
the Liverpool, London & Globe Insurance Company, dated May 20,
1886, enclosing a notice in a newspaper of the day before of a sale
by auction to be had on May 29, 1886, at the plaintiff's warehouse
in Covington, of the tobacco insured by the policy in suit. Upon
this evidence, the court instructed the jury that on the issues
joined on the special defenses in the answer, the plaintiff could
not recover, and that they should return a verdict for the
defendant. The plaintiff tendered a bill of exceptions to these
instructions, and, after verdict and judgment for the defendant,
sued out this writ of error.
Page 137 U. S. 383
MR. JUSTICE GRAY, after stating the facts as above, delivered
the opinion of the Court.
This case resembles in some aspects that of
Hamilton v.
Liverpool, London & Globe Ins. Co., 136 U.
S. 242, decided at the last term, but it is essentially
different in important and controlling elements.
In that case, the effect of the provisions of the policy by
reason of which it was held that the assured, having refused to
submit to the appraisal and award provided for, could not maintain
his action was thus stated by the Court:
"The conditions of the policy in suit clearly and unequivocally
manifest the intention and agreement of the parties to the contract
of insurance that any difference arising between them as to the
amount of loss or damage of the property insured shall be submitted
at the request in writing of either party, to the appraisal of
competent and impartial persons, to be chosen as therein provided,
whose award shall be conclusive as to the amount of such loss or
damage only, and shall not determine the question of the liability
of the company; that the company shall have the right to take the
whole or any part of the property at its appraised value so
ascertained, and that until such an appraisal shall have been
permitted and such an award obtained, the loss shall not be
payable, and no action shall lie against the company. The
appraisal, when requested in writing by either party, is distinctly
made a condition precedent to the payment of any loss, and to the
maintenance of any action."
136 U.S.
136 U. S.
254-25.
That policy looked to a single appraisal and award, to be made
as one thing and by one board of appraisers or arbitrators whenever
any difference should arise between the parties, and to be binding
and conclusive as to the amount of the loss, although not to
determine the question of the liability of the company, and the
policy contained not only a provision that until such an appraisal,
the loss should not be payable, but an express condition that no
action upon the policy should be sustainable in any court until
after such an award.
In the case now before us, on the other hand, the appraisal
Page 137 U. S. 384
and the award are distinct things, and to take place at separate
times, and the effect assigned to each is quite different from that
given to the appraisal and award in the other policy. The
"appraisal," without which the loss is not payable, is required to
be made not merely when differences arise as to its amount, but in
all cases, and results in a mere "report in writing," which is not
declared to be binding upon the parties in any respect and is in
truth but a part of the proofs of loss. It is only by a separate
and independent provision, and when differences arise touching any
loss "after proof thereof has been received in due form," that the
matter is required at the request of either party to be submitted
to
"arbitrators, whose award in writing shall be binding on the
parties as to the amount of such loss, but shall not decide the
liability of this company under the policy,"
and there is no provision whatever postponing the right to sue
until after an award.
The special defenses set up, with some tautology and surplusage,
in the answer reduce themselves, when scrutinized, to a single one,
the plaintiff's refusal to submit to an award of arbitrators as
provided in the policy. This appears by the general frame of the
answer, and by its speaking of the award as "an arbitration and the
ascertainment of the said loss thereby," and as "an appraisement by
arbitrators," as well as by the distinct averments that the
defendant requested and the plaintiff declined a submission to
arbitration, and by the omission of any specific allegation that
the plaintiff neglected to procure a report of appraisers. The
evidence introduced at the trial was to the same effect. Proofs of
loss sent by the plaintiff to the defendant, with a request that
any defects in substance or form might be pointed out so that he
might perfect the proofs to the defendant's satisfaction, were
received by the defendant without then or afterwards objecting to
their form or sufficiency. The subsequent correspondence between
the parties was evidently influenced in form by embracing
insurances in different companies under policies with various
provisions; but, as applied to the policy in suit, it manifestly
related, and was understood by both parties to relate, not to a
mere report of appraisers,
Page 137 U. S. 385
but to an award of arbitrators which should bind both parties as
to the amount of the loss. The instruction to the jury, therefore,
that on the issues joined on the special defenses in the answer,
and upon the evidence in the case, the plaintiff could not recover
was in effect a ruling that the plaintiff could not maintain his
action, because he had refused to submit the amount of his loss to
arbitration.
A provision in a contract for the payment of money upon a
contingency that the amount to be paid shall be submitted to
arbitrators, whose award shall be final as to that amount but shall
not determine the general question of liability, is undoubtedly
valid. If the contract further provides that no action upon it
shall be maintained until after such an award, then, as was
adjudged in
Hamilton v. Insurance Co., above cited, and in
many cases therein referred to, the award is a condition precedent
to the right of action. But when no such condition is expressed in
the contract or necessarily to be implied from its terms, it is
equally well settled that the agreement for submitting the amount
to arbitration is collateral and independent, and that a breach of
this agreement, while it will support a separate action, cannot be
pleaded in bar to an action on the principal contract.
Roper v.
Lendon, 1 El. & El. 825;
Collins v. Locke, L.R. 4
App.Cas. 674;
Dawson v. Fitzgerald, 1 Ex.D. 257;
Reed
v. Washington Ins. Co., 138 Mass. 572;
Seward v.
Rochester, 109 N.Y. 164;
Birmington Ins. Co. v.
Pulver, 126 Ill. 329, 338;
Crossley v. Connecticut Ins.
Co., 27 F. 30.
The rule of law upon the subject was well stated in
Dawson
v. Fitzgerald by Sir George Jessel, M. R., who said:
"There are two cases where such a plea as the present is
successful -- first, where the action can only be brought for the
sum named by the arbitrator; secondly, where it is agreed that no
action shall be brought till there has been an arbitration, or that
arbitration shall be a condition precedent to the right of action.
In all other cases where there is first a covenant to pay, and
secondly a covenant to refer, the covenants are distinct and
collateral, and the plaintiff may sue
Page 137 U. S. 386
on the first, leaving the defendant . . . to bring an action for
not referring,"
or (under a modern English statute) "to stay the action till
there has been an arbitration." 1 Ex.D. 260.
Applying this test, it quite clear that the separate and
independent provision in the policy now before us for submitting to
arbitration the amount of the loss is a distinct and collateral
agreement, and was wrongly held by the circuit court to bar this
action.
Judgment reversed and case remanded with directions to set
aside the verdict and to take such further proceedings as may be
consistent with this opinion.