WESTERN ASSUR. CO. OF TORONTO, CANADA, v. DECKER, 98 F. 381

CALDWELL, Circuit Judge. This was an action on a policy of lire insurance which contained the following provisions: “Said ascertainment or estimate [of loss] shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided. In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire.

The appraisers then, together, shall estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraisers respectively selected by them, and shall hear equally the expenses of the appraisal and umpire.

No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 12 months next after the fire.” A special verdict of the jury found that there was a loss under the policy, and that the company and the insured were unable to agree on the amount of the loss, and that they each, acting in good faith, selected an appraiser as provided for in the policy.

These appraisers, each acting in good faith, were unable to agree upon an umpire and were likewise unable to agree upon the amount of the loss, and finally abandoned all effort to agree on either. After it was definitely ascertained that the appraisers had abandoned all effort to agree, and would do nothing further in the premises, the company did not appoint another appraiser, or request the insured to do so, and the insured brought this suit on the policy, and recovered judgment, and the company sued out this writ of error.

The contention of the company is that, when the arbitrators failed to agree, it was the duty of the insured to propose a new selection of arbitrators, and that, not having done so, and not having appointed an arbitrator the second time, he cannot maintain this action. The terms of the policy are satisfied when the insured, acting in good faith, appoints an appraiser.

If the appraisement falls through by disagreement of the appraisers without any fault of the insured, he has discharged his covenant, and satisfied the requirements of the policy, and may then resort to the courts to have his damages assessed. “If the appraisement faffed without the fault of the insured, the failure would not be any impediment to their right of recovery if they could maintain their suit on other grounds.” Insurance Co. v. Traub (Md.) 35 Atl. 13, 16. And the supreme court of North Carolina, in Pretzfelder v. Insurance Co., 21 S.

E. 302, say “that, where the arbitrators, or a majority of them, failed to agree upon an award, the plaintiff (unless he is shown to have acted in bad faith in selecting his arbitrator) is not compelled to submit to another arbitration and another delay, but may forthwith bring his action in the courts.” One of the fundamental and essential constitutional rights of the citizen is the right to appeal to a court of justice for a redress of his grievances. One of the chief ends of government is to secure this right to the citizen.

While some of the courts hold that the citizen may, by contract, bargain away this right, the agreement to do so will not be extended by construction or implication. Even if a second appointment of arbitrators was required by the terms of the policy, there is nothing in the policy, as contended by the defendant in error, which imposes on the insured the obligation to be the first to propose another selection of arbitrators and appoint a second arbitrator.

The terms of the policy relating to the appointment of appraisers are that the loss shall “be ascertained by two competent and disinterested appraisers; the insured and this company each selecting one.” There is not a line or a word in the policy making it the duty of the insured any more than of the company to demand an appraisement and appoint an appraiser. The policy in suit in the case of Kahnweiler v. Insurance Co., 14 C. C. A. 485, 67 Fed. 483, 32 U. S.

App. 230, provided that, if the company and the assured were unable to agree upon the amount of the loss, “the same shall then be submitted to competent and impartial arbitrators, one to be selected by each party.” In that case, as in this, the company contended that it was the duty of the insured to take the initiative, and demand an arbitral ion, and appoint an arbitrator.

That case was exhaustively argued by able counsel, and, after a full consideration of the adjudged cases, this court said: ‘•Each party is entitled to demand a. reference, but neither can compel it, and neither has the right to insist that the oilier shall first demand it, and shall forfeit any right by not doing so.

If the company demands it, and the Insured refuses to arbitrate, his right of action is suspended until he consents to an arbitration; anil if the insured demands an arbitration, and the company-refuses to accede to the demand, the insured may maintain a suit on the policy, notwithstanding the language of the twelfth

section of the policy; and, where neither pally demands an arbitration, both parties thereby waive it. The clause is to be construed the same as if it read, ‘Upon the request of either party.’ These words, or their equivalent, are commonly found in similar clauses in policies of lire insurance, and they are necessarily and plainly implied in this policy.” The judgment of the circuit court is affirmed.