was fixed by contract. Nor was the expense to which the parties were put to secure an appraisal material." Furthermore, the intent with which the company may have acted was considered entirely immaterial, so long as, in point of fact, it was acting within its contractual rights. Where the evidence is not conclusive as to who was at fault, or as to whether the appraiser was acting in good faith, or as the representative of the company, the question should be left to the jury. Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9, 39 N. E. 1102, 45 Am. St. Rep. 105, affirming 49 Ill. App. 388; Fowble v. Phoenix Ins. Co., 106 Mo. App. 527, 81 S. W. 485; Bishop v. Agricultural Ins. Co., 130 N. Y. 488, 29 N. E. 844, affirming 56 Hun, 642, 9 N. Y. Supp. 350. (k) Putting insured to trouble or expense after his refusal to arbitrate. In Morley v. Liverpool & L. & G. Ins. Co., 85 Mich. 210, 48 N. W. 502, it was held that though the insured, by a sale of the property, had rendered a compliance with the policy requirements impossible, yet a subsequent examination of the insured waived such "forfeiture." But where there were several policies, some insuring both merchandise and fixtures, and others insuring merchandise only, a conversation with one of the adjusters of the companies in interest after loss and after a sale of the merchandise, in which such adjuster requested plaintiff to furnish proofs of loss as to the fixtures and furniture, did not operate as a waiver of the breach of a policy insuring the merchandise only, though the request was complied with by the sending of such proof to all the insurers. Though the adjuster demanded proofs as to fixtures for all the companies, yet the insured must have known that the defendant company's policy had nothing to do with such property, and that the act of the adjuster as to it was entirely unauthorized. The insured was not, therefore, justified in believing that there was any intention to waive the forfeiture already accrued by the sale of the property (Astrich v. German-American Ins. Co., 131 Fed. 13, 65 C. C. A. 251). (1) Waiver of second arbitration after failure of first. A refusal of the insured to submit to a second arbitration, after a failure of the appraisers to agree, was held, in Michel v. American Cent. Ins. Co., 44 N. Y. Supp. 832, 17 App. Div. 87, not to have been unjustifiable, the company having been guilty of delay in attempting to secure the second arbitration, and having refused to waive the provision that the loss should not become due until 60 days after notice of the amount awarded. Also, the subsequent adjustment of the loss and a request, complied with by the insured, that the proofs be made out in such amount, has been held to waive the provision for appraisal (Manchester Fire Assur. Co. v. Koerner, 13 Ind. App. 372, 40 N. E. 1110, 41 N. E. 848, 55 Am. St. Rep. 231). And, of course, if the defendant refuses to act further after the disagreement of the arbitrators, the provision will be waived (Harrison v. German-American Fire Ins. Co. [C. C.] 67 Fed. 577). Where the attention of the insurer has been called to facts invalidating the award, it may either demand a new appraisal, or stand on the validity of the award already rendered. And if it adopts the latter course it will amount to a waiver of its right to any further appraisal. Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. 855; Christianson v. Norwich Union Fire Ins. Soc., 84 Minn. 526, 88 N. W. 16, 87 Am. St. Rep. 379; Produce Refrigerator Co. v. Norwich Union Fire Ins. Soc., 91 Minn. 210, 97 N. W. 875, 98 N. W. 100; Lang v. Eagle Fire Co., 42 N. Y. Supp. 539, 12 App. Div. 39; Germania Ins. Co. v. Cincinnati P. B. & P. Packet Co., 6 Ohio N. P. 173, 7 Ohio S. & C. P. Dec. 571; American Fire Ins. Co. v. Bell (Tex. Civ. App.) 75 S. W. 319. In Davis v. Atlas Assur. Co., 16 Wash. 232, 47 Pac. 436, affirmed on rehearing 47 Pac. 885, the company was held chargeable with the knowledge of its appraiser, so that a waiver of a second appraisal arose from its insistence on the validity of the award, though in a correspondence with the insured it said it would submit to a new appraisal, if the first one should be found invalid. And the same rule applied though a demand for a new appraisal was finally made, after the commencement of action on the policy, and nearly a year after the fire (Davis v. Imperial Ins. Co., 16 Wash. 241, 47 Pac. 439). (m) Pleading and practice. Allegations that defendant "wholly refused to fulfill its obligation as to arbitration" (Western Assur. Co. v. Hall, 120 Ala. 547, 24 South. 936, 74 Am. St. Rep. 48), or that it "waived and dispensed" with such provision, and "utterly failed to carry out or insist" upon it (Virginia Fire & Marine Ins. Co. v. Cannon, 18 Tex. 6 ·Civ. App. 588, 45 S. W. 945), have been held sufficient averments of waiver. And it was said in American Fire Ins. Co. v. Stuart (Tex. Civ. App.) 38 S. W. 395, that waiver could be proved under allegations of performance. But in Iowa it has been held that, under a statute providing that plaintiff may make a supplemental petition alleging facts which have happened or come to his knowledge since the filing of his petition, it is not permitted to plaintiff to plead and prove a demand for appraisal made after the action was commenced (Zalesky v. Home Ins. Co., 102 Iowa, 613, 71 N. W. 566). Where the waiver was set up by the plaintiff as a reply to a defense of no arbitration, it was held not incumbent on plaintiff, in her case in chief, to introduce evidence concerning the issues so raised (Lancashire Ins. Co. v. Murphy, 10 Kan. App. 251, 62 Pac. 729). And where, on an issue as to whether the insurer had itself prevented arbitration, the evidence consisted of letters from which different inferences might have been fairly drawn, the question was one for the jury, the ordinary rule as to documentary evidence not being applicable. Carp v. Queen Ins. Co., 104 Mo. App. 502, 79 S. W. 757. But see Hamilton v. Liverpool & L. & G. Ins. Co., 136 U. S. 242, 10 Sup. Ct. 945, 34 L. Ed. 419, where the construction of letters in which the insured refused to accede to a demand unless the company would define in advance the powers of arbitrators was held to be for the court. So, also, where the evidence on the question of waiver consisted partly of letters between the parties, it was held that such letters should be submitted to the jury with the other evidence, without instruction as to their effect standing alone (Davis v. Western Massachusetts Ins. Co., 8 R. I. 277). But in Iowa, where the scintilla doctrine no longer obtains, it has been held that though the evidence was not all one way, yet, if it was sufficient to show that the company was not responsible for the failure of arbitration, the case should be taken from the jury (Westenhaver v. German-American Ins. Co., 113 Iowa, 726, 84 N. W. 717). • Code Iowa, § 2731. 5. ARBITRATION IN LIFE AND ACCIDENT INSURANCE AND SUBMISSION TO TRIBUNALS OF FRATERNAL ORDERS. (a) Arbitration. (b) Recourse to tribunals of fraternal order as condition precedent to action. (c) Conclusive effect of decisions by tribunals of the order. (d) Waiver. (a) Arbitration. Where a certificate of life or accident insurance fixes a legal obligation upon the insurer to pay a certain sum upon the happening of the contingency insured against, rather than to pay the amount of an award, a further stipulation requiring that all disputed claims shall be submitted to arbitration before any action shall be brought thereon is invalid as an attempt to oust the courts of their jurisdiction. Whitney v. National Masonic Acc. Ass'n, 52 Minn. 378, 54 N. W. 184; Badenfeld v. Massachusetts Mut. Acc. Ass'n, 154 Mass. 77, 27 N. E. 769, 13 L. R. A. 263; Prader v. National Masonic Acc. Ass'n, 95 Iowa, 149, 63 N. W. 601; Keeffe v. National Acc. Soc., 4 App. Div. 392, 38 N. Y. Supp. 854; Baldwin v. Fraternal Acc. Ass'n, 46 N. Y. Supp. 1016, 21 Misc. Rep. 124; National Masonic Acc. Ass'n v. Burr, 44 Neb. 256, 62 N. W. 466; Kinney v. Baltimore & Ohio Employés' Ass'n, 35 W. Va. 385, 14 S. E. 8, 15 L. R. A. 142; Fox v. Masons' Fraternal Acc. Ass'n, 96 Wis. 390, 71 N. W. 363. But see Smith v. Preferred Masonic Mut. Acc. Ass'n (C. C.) 51 Fed. 520, where, in order to hold valid a stipulation providing for the arbitration of "any claim," etc., the provision, was construed as referring only to questions of the amount of loss or damage. Furthermore, the court held in that case that a stipulation requiring arbitration, but not expressly making it a condition precedent to action or liability, operates merely as an independent covenant, for the breach of which damages might be recovered in a separate action. And the rule has been held to be the same in the case of an unincorporated society (Daniher v. Grand Lodge A. O. U. S., 10 Utah, 110, 37 Pac. 245). It is, however, apparently the doctrine of the Michigan court that a provision looking to the arbitration of all disputed claims is valid, at least when occurring as one of the rules of a fraternal order. In Russell v. North American Ben. Ass'n, 116 Mich. 699, 75 N. W. 137), which was an action on an award, the court upheld the validity of a by-law requiring all the arbitrators to sign the award. And though it plainly appeared in the Russell Case that the arbitrators constituted a tribunal outside the order who were to determine "any question" as to "the validity of any claim," rather than a court or determining body within the order, yet in a subsequent case (Hoag v. Supreme Lodge International Congress, 95 N. W. 996, 134 Mich. 87), where the objection to recovery was founded upon a failure of the beneficiary to prosecute her claim within the courts of the order, it was said that the provisions of the by-laws were substantially the same in the two cases. It should, however, be noted that though the Hoag Case cites the Russell Case as a controlling authority on the question of the jurisdiction of the tribunal provided, yet in fact such question was not necessarily involved in the Russell Case, since the action there was upon the award, the beneficiary not disputing the jurisdiction of the arbitrators, but only the reasonableness of a rule requiring a new arbitration in case all the arbitrators did not all sign the first award. (b) Recourse to tribunals of fraternal orders as condition precedent to action. Fraternal insurance orders frequently provide a procedure for the hearing and determination within the order of all claims or disputes arising in relation to the insurance. A stipulation expressly providing that no action shall be maintained against the order until the appeals and procedure provided within the order are exhausted is valid and binding on the members. Such procedure is usually regarded as a method of presenting the claim to the order, rather than as an arbitration outside the order, and therefore as valid, though looking to a submission of the whole question.1 Supreme Lodge of Order of Select Friends v. Raymond, 57 Kan. 647, So, also, a provision looking to an appeal to a supreme body, whose decision shall be final, has been held valid in so far as it requires all appeals to be taken before a resort can be had by a member to the courts. Supreme Council of Order of Chosen Friends v. Forsinger, 125 Ind. 52, 25 N. E. 129, 9 L. R. A. 501, 21 Am. St. Rep. 196; Robinson v. Templar 1 As to the right in general of a member of a beneficial order to a recourse to the courts, see Cent. Dig. vol. 6, "Beneficial Associations," cols. 20752077, § 21; cols. 2100, 2101, § 45. |