;f/
, WALLA.m::V.
GERMAN..AMERICAN
I:f.<s. Co..
l.Of!rWUOourt,N.,D. Iowa. JUly, 1882.}1 ,1. Fnilll '.. . '.. . , .. A' policy, of insurance provided tlillit;lin case difterenoes'should arise touching any lOBB,the matter, should I'>ll.t' of either,party, " be submittel!. to.srbitrat.ars, whose aWllol;'d should !:le, qii,1,din8 ss'to the spIount of theJoss, ,but nqt , as to the coInp'any's liabilily I'. also that aotion cOUlpany fOr ll.tlY claim under the polloyshOu d be any oourt of law or chanoery tmtil after an awand should be obtained, filIiing the amount of 'such "lin, the'manner !' : ; H6/,d,i it was'neoessary for tMaisured 1:,0 !equeat a.n arbitration, and, where none had been requested by the cOUlpany, he mIght main, tai'U his .8Ction ll>n award having been made. I. .S-WE--CON8TRUCTION OIl' PqLIOY. ..' . ' . ' ," ! Wll.im the words ernploYee.' by an insurance oompany bie, 'pblioy,of themselves, '¢' in ponJleptio)1 with otliler language:therein, or In refereheeto; the subject-matter to which they relate, are susceptible of the interpretation given them by thll as.sured, although in fact intentled otherwise by the the policy will ,be construed itl favor of the aSsured.
At Law. '. On motion ,for a new triaL , 'Fo;rqecision on demurrer,see :2Fed,Rep. 658. Duzee &fIubbard" &- OlQ:rk and 1IfJnry. Rickel, for defendant.
MCCRARY,;J'. This is':anaction upon.a policy isstledby defendant to plaintiff him against lOBS by fire upon a certain there. in There was a trial by jury, and a verdict for plaintiff for $1,788.78. .The case is now before the court on a motion for anew trial!. It is insisted that, under the terrus of the policy sued on, an arbitration fixing the llmouqt of theJoss is a conditioli ,precedent to plaintiff's right to'maintain this action., ,The same question was raised at an early stage of thil\ proceeding by demurrer to the replication, and was decided adversely to the defendant. .1 McCrary,. 335, 2 Fed. Rep. 658. Weare asked .to reconsider the question upon the ground that it was not fuUy argued by counsel f1,t the tirne.ofthe hearing upon demurrer. There cau, we think, be no valid objection upon the part of the courHo reconsidering, upon final hearing, any question passed upon in the pre. liminary in ,a case where our judgment must he final;. the sum involved not being sufficient to authorize a writ of error. clause or The policy contains the following prQvisions: In the condition it is provided that"In casepitlerences sball ',arise touching any loss or <damage,after proof thereof has in due form, ,the.matter shall, at the written request pf eitherparty,be 8ubmitted to impartial arbitrators, whose; !l-ward in writipg shall be binding on ,the parties as, 't,he .amount of 8,uch lo!\s, Or but shaH not .the liability of the company under this 'policy." ., .': 'fhe or' the follqwing: ., , .. "It is furthermore herebY provided and mutually no Buit.or ae-. tion against the company 'for the recovery of any claim by virtue of this polI
Publication delayed because of failure to receive copY'.
WALLACE
V.
GERMAN-AMERICAN INS. CO.
743
shall have been obtain,ed, fixing the amount of such claim, in the manner
icy shall 'be sustainable, in any court of law or chancery, until after an award above provided:"
It is undoubtedly competent for the parties toa contract to agree that damages claimed by either party under it shall be ascertained by an arbitration, and that no suit shall be brought until after such an arbitration has been had; but a contract which is intended to deprive the, parties to it of the right Of an appeal to the courts for redress, or to place conditions and limitations upon that right, should be strictly construed. And this is especially true of contracts which, like the one before,us, embody numerous special provisions and conditions, prepared and printed by one of.the parties. By a liberal construction of the abovequoted provisions of the policy ,it might he held that the assured was bound, as a condition precedent to the right to sue for his loss,to request the insurer in writing to enter into an arbitration; but it cannot be said that, strictly construed, the language must necessarily have this meaning. The "first provision above quoted is that, in case of differencestouching any loss, they shall, at the written request of either party; be submitted to impartial arbitrators. It is not alleged or claimed that thel:'e was a written request> by either party, for ·such arbitration. There is force: iJ;l the suggestion that the language, of the contract did not impose the duty of requesting an arbitration upon one party more than upon the other. The language employed might well have induced the belief on the part oftbeplaintitf ,that the duty of requesting an,aibitra,.. tion rested upon the defendant if it desired to enforce the provision, or to set it up as a bar to this action. The conditioudid not a,b,lWlutely require an arbitration; it,only authorized either party to require it by a request in writing. The inference is reasonable that, ifneither party requested it in writing, the usual remedies by suit were to remain. It may reasonably be inferred that the parties had in view the possibilit)T that in some cases both l\Touldprefer a suit ina 'court of justice to an arbitration, and therefore left it optional with either party to request in writing an arbitration'; intending that" if both declined to make such request, legal proceedings might be resorted to. If this was not the it is difficult to understand what purpose they h'ad in view iU\lsing the words I writtEm request·ofeither party."'" If it was theii .purpose to require that, in every caSe the damages should be ascettained by arbitration, they could have said so in plain terms. TM condition above quoted must be construed in connection with. thefirs.t, and so that the two may harmonize. The latter provision declares, in' stibstance, that no Eliit to recover any loss "shall tainable until after an award shall have beenobtained,fixing the amount the :Q1anfier abov.e provided." Hthis prOVision stpod 8lone, it ,might well be claimed that, in the absence of an and award, no suit could be maintained; but it refers to the prior condition respecting arbitration, arid the twonlust be readtogether.,: SQ te4d, there is ground for helding that-the two provisions together ,authorize either party f J denIand an arbitration, but do ,not, absolutely require'.ei-
744
FEDERA13iREPORTER,
vol. 41. :
therto ddSO; and that, where does demand sU<lh arbitration, no stiitt1nnbe maintained until after'the amount of damllges shall have been in that manner ascertained. 'We say there is ground for this constructioniartd we use this language because nothing more 'is required. If the ll:\.ngnago employed'in the pOlicy leaves the question in doubt, the construction placed upon it, and acted upon by the assured, is to be upheld. drawn by one party, who makes his own terms and imposes his own conditions, will not be tolerated as a: snare to the un· wary; and irthe words employed"of themselves. or in connection with other· language used in the instrument, or in reference to the subjectmatter to which they relate,;a,re susceptible of the' interpretation given them by the assured, although in.: fact intended otherwise by the insurer, the policy will be construed in favor of the assured. As the insurance company· prepares the contract, and ,embodies in it such conditions as it deems proper, it is in duty bound to use language so plain and clear that the insured cannot mistake or he misled as to the burdMs and duties thereby imposed upon him. Wood, Ins. 140, 141, and cases cited. If it be held that the conditions above quoted are r\lpugnant or inconsistent, the result is the same; fur in that case the provision which is most favorable to-the assured wm'begiven effect. ' Id. 147. The other questions. discussed. by counsel' need not be considered,: for the reason that such of them as are of importaore or in anywise doabUul are disposed of by the special findings of.tJ1e jury in answer to interrogatories submitted by the counsel for defendant. Motion for new trial overruled. LOVE,
J., concurs.
, BUNTIN 'V. CHIOAGO,
R. I. & P. Ry.
Co.
W. D· .J{Ul80'U11'i. Maroh 4, 1890.)
9.
LIMITATION 0lI" ACTIONS-AoORUAL .oF AOTION-OBSTRUOTION OF: STREAM.
Where such. amended petition was1Ued more than llyears after. the first overHow occurred ,and demonstrated the ,negligent construction of the bridge as to plalntUf's land, the cause, of action stated therein was barred by limitation.
At Law. On demurrer to plaintiff's evidence. J, W. Boyd and Greene &- Burnes, for plaintiff. McD01J,gal &: Robinson and E. H. Stiles, for defendant.