vol. 61,. ,
of the Is probable. That they had worked any Ilearer is not shown. In saying this we are not unmindful of the fact that there was a scintilla of evidence from which it might, be inferred that the rails had been loosened near the place of derailment. That evi· den,ce is, however, so vague and so unsatisfactory that no verdict stand based, upon it. But, however this may be, there was still a total failure of evidence that the suspected rails caused or contributed to cause the derailment. The train went off the track on the east side. An examination was at once made as to the cause of .the derailment. This developed the fact that a rail had 'been on 14e east side. The bolts and spikes holding this rail bad been removed, and were lying at the point where taken out. ' A crowbar and wrench were on the track near by, which had. evid,ently been used in taking out that rail., These tools were part ,(If, those left in, the bushes on the side of the track the night After the spikes had been drawn and the joint bolts taken indications were that the, rail had been set out of alignment some :qve: or six inche$l a,nd nearer the end of the ties. The wheel ,on the ties began just Where, this displaced'rail had lain, andfo1l,owed the bed of the rall J;l.orth to the rail. There the W'b,eell!l had nibbed the corners, of the next rail and deflected to the outside. Mterrunning on, the ties 'some 90 feet, gradually east rail, the engine went off getting further and further from the, fUl"and turned over.' The evidence that no spikes or bolts had been drawn from any rail on the east side is undisputed in the proof." Late that evening it is shown that the rails on the east side bali', been examined, and fraIl). none had any bolts or spikes been drawn. There was no indication of disturbance of any of the rails OIl the we&t side, and no displacement of any rail which had been,worked on the evening before. No less than three trains had saJ'eiy passed over these rails before the train in charge of intestate. The inference. is that' a rail had been maliciously displaced ,on the east side of the track after the passage of the last train for the purpose of wrecking this train. The evidence wholly failingto show that the condition in which the traclf, was left the evening before had anything to do with the derailment on the oppo, site ,side of the track, ,we therefore think there was no error in directing the jury to return a verdict for the defendant. , The judgment is accordingly affirmed.
MUTUAL FIRE INS. CO. dF NEW YORK v. ALVORD. (Circuit Court of Appeals, First Circuit. April 18, 1894.) ! No. 68. 1.
INsuRANOE.,...CONDITI01'[S OF POLIOY.,...A!tBITRATION.
The 'insured is not 'precluded from suing on a polley by a provision therein that the amount to be paid, in case of disagreement, shall be submitted to arbitration, but not expressly or by implication prohibiting suit until after such arbitration.
2. SAME-SUBMlSSION TO' ARBI'l'RATION. · . In an actioll on ,a policy providing for; estimates ot loss by both parties,
a.ndthat. in the event of disagreement, the amount should be ascertained
JrlUTUALFIRE INS. CO.
by two appraisers, each party selecting one, and the two selecting an umpire, evidenceo! lU1 agreement for suomission, expressly declaring that it shall not be construed as a waiver of the rights of either party, and an award thereon, not showing that any estimate of loss was made by the insurer, or that any umpire was chosen, is inadmissible. 8.
EXPER'r TESTIMONY-QUALIFICATIONS OF WITNESS.
The question whether a witness is qualified to testify as an expert is largely within the discretion of the trial judge.
INSURANCE - PROVISIONS OF POLICY AGAINST OVERINSURANCE MORTGAGEE.
Under a policy providing against other insurance except to a certain amount permitted, with a mortgagee clause making any loss payable to the mortgagee, and providing that he should not suffer for any act or neglect of the mortgagor, his rights are not affected by the mortgagor obtaining more Insurance than the amount permitted, even though the po]jcies are in his possession, or though the Insurance is taken out by him at the mortgagor's request; and a polley taken out by him, which, with the insurance then eXisting, does not exceed the amount permitted, is ,'not invalidated by SUbsequent Insurance by the mortgagor In excess of that amount.
In error to the Circuit Court of the United States for the District of Massachusetts. This was an action by Alfred E. Alvord against the Mutual Fire Insurance Company of New York on a policy of insurance against fire. At the trial the jury found a verdict for plaintiff. A motion by defendant'for a new trial was overruled, and judgment for plaintiff was entered on the verdict. Defendant brought error.
The policy contained a provision that "this entire policy, unless otherwise provided by agreement Indorsed hereon or added hereto, shall be void if the Insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." An ag-reement added to the policy permitted "other concurrent insurance to three-fourths value." A mortgagee clause, added to the policy, made the loss, if any, payable to plaintiff, "mortgagee or trustee," and provided "that this insurance, as to the Interest of the mortgagee or trustee only. therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property described." The charge of the presiding judge at the trial, relating to overinsurance, referred to In the following opinion of the court, was as follows: "Now, gentlemen, there is another question raised here which comes in as part of the defense, and as to which the burden of proof is on the defendant, and that Is the claim that some one has violated the terms of these policies with reference to other insurance, so as to invalidate them. These policies contain a clause in the usual form, prohibiting other insurance without the consent of the underwriter; and it also provides that, if other insurance is obtained without the consent of the underwriters, it shall avoid these policies; and it goes further, and contains the usual provision that It shall so avoid even though the other Insurance Is Itself void. And then comes in a clause permitting other concurrent insurance to an amount not exceeding three-quarters of the value. Now, that Is a reasonable clause, an advantageous clause, and a clause that to be fairly and justly enforced by the courts and by juries, because it is the main remedy which the company has against overinsurance, against fraudulent insurance; a practice, so far as it eXists, detrimental, gentlemen, alike to you and to the inSurance companies. It does not follow that In this case the other Insurance must be fraudulently or Willfully obt3;ined, or even knowingly obtained, In excess of the amount permitted. It is a case where the underwriters, In order to protect themselves against overinsurance, are entitled to say, and must say, that overinsurance avoids the policy, even though It is obtained innocently or Ignorantly; no question of fraUd arising. but a pure question of fact, nothing else.
J'EDERAL (BEPOBTER"VoU :61.,
"But, this policy provJdes that the lIlOrtg/Jgee shall, suffer-I am notgtmllg you the precise language, but the subl3tance of not suffer bYthe'ac1\ or neglect of the mortgagor; and therefore Iwstruct you, gentlemen" t1:lat although the mortgagor may have of itself taken out policies in excess of the amount permitteq., and although it may have made these policies payable to the mortgagee, and the mortgagee may have taken them and held them, yet the taking out of the policles is the act of the mortgagor under these circumstances, and not an, act for which the mortgagee should suffer. So, also, gentlemen, if Mr. Alvord, at the request of the mortgagor, obtained policies of that character, and did nothing more than to obtain thePl at the request of ,the mortgagor, that would be an act of Mr. AlvordJn his individual capacity as the agent of the mortga,gor, and not his act as trustee, and would not affect 1J.h;nlll this litlgation, if that was all, which appeared in the case. So that if, by the course of dealing between the parties, especially between the mortgagor ,and the mortgagee, Mr. Alvord, under authority implied in the course of bll\liness,\obtained policies, as a.1ready stated, in excess of the amount permitted, Ye!; gentlemen, he WOUld stIll be acting a9 the agent of the mortgagor, in his fudividual capacity, aM not as trustee; and, his act would not affect bis, rightS trustee, or the rights of the bondholders ,whom he represents. In other' words, so far as he, either by direct authority or by implication arising from the course of business, obtained insurance policies as the agent or of the J;ll9rtgagor, he acted individually, and not as trustee, and these sults cannot be affected by what he did. "But, gentlemen, there is some evidence here concerning a certain Concord policy or certain Concord pollcies, as to which I leave the facts entirely for you, stating that. if Mr. AIV'ord,as ¥"nstee, or under color of, his', offlce as trustee, or on his, o,wn motion, for the purpose of protecting the"trust property, and Withouttequest ,from the mortgagor, obtained insurance'ralfhough that insurancewas to «!Over the mortgagor's interest, and it was payable to him, that was his own independent act as trustee, bY' which he must stondor fall. But, gentlemen, If,You reach that stage, of the case, if you'cOcme to a determination upon that ppiilt, and hold that under tJiese rules Mr. Alvord was acting of his own motion as trustee in securing Ooncord policy or policies, 1:10 that his obtaining of it, was his own act, and, not the act of the mortgagor, you have this fact further to consider: Those ,C()ncord policies" you will find, were all dated the 25th day of July, 1890, and' expired the 25th day of July, 1891; .and at that time the amount of policies tllen existing upon the property, if I have computed correctly,-you will compute it,-the amount of policies then eXisting upon the property was $69,500, inclUding the Concord policies,-all of them. In other words, the amount of policies,./lS shown by the proof oOoss, obtained after July 25, 1890, if I have computed correctly,-you will have the proof with you,-was $23,000. And I instruct you, gentlemen, that if .the policies obtained by the trustee 011 his own motiol1- did not, at the date when they were obtained, bring the amount of insurance beyond the three-quarters which was permitted, the obtaining of the additional $23,000 afterwards by the mortgagor cannot be considered by you, You al'e to look at the state of the policies at the time when the Concord policies were obtained, and not consider what were subsequently taken out. I may be in error about these figures, but I simply call your attention to. the fact. But bear in mind that the burden is upon the defendaIlts, not upon the plaintiff, to show to you the. amount of in.surance existing on the property at the time when the Concord policies were taken out." .
Godfrey Morse and Edwin N. Hill, for plaintiff in error. Barron C. Moulton and Victor J. Loring, for defendant in error. Before .COLT, Circuit Judge, and NELSON. and ALDRICH. District J COLT, Circuit Judge. The policy of insurance upon which this suit was brought contains the following provisions relating to the ascertainment or estimate of loss:
MUTUAL FIRE INS. CO. V. ALVORD.
"This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insur(1d to repair or replace the same with material of like kind and quality. Said ascertainment or estimate shall be made by the insured and this company; or, if they differ, then by appraisers, as hereinafter provided; and, the amolintof loss or damage having been thus determined, the sum for which this company is liable pursuant to this polley shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory this company in accordance with the proof of the loss have been received terms of this polley. · · · 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, together, shall then 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. · · · This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal, or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, Including an award by appraisers, when appraisal has been required."
It is undoubtedly true 'that a policy of insurance may contain a valid provision which prohibits the insured from maintaining an action until the amount of loss shall have been first submitted to arbitration, and an award shall have been made. In such a case the determination of the amount by arbitration is recognized as a condition precedent to the right of the insured to bring suit. Hamilton v. Insurance Co., 136 U. S. 242, 10 Sup. Ct.945; Scott v. Avery, 5 H. L. Cas. 811; Viney v. Bignold, 20 Q. B. Div. 172. But, in order to make such award a condition precedent to the right of maintaining suit, it must be so expressed in the policy, or necessarily implied from its terms. A mere provision in the policy that the amount to be paid in case of disagreement shall be submitted to arbitration does not prevent the insured from maintaining an action, unless the policy further provides that no action shall be maintained until after award; but such agreement to submit to arbitration is regarded as a collateral and independent agreement, the breach of which, while it will support a separate action, cannot be pleaded in bar to an action on the principal contract. Hamilton v. Insurance Co., 137 U. S. 370, 385, 11 Sup. Ct. 133; Roper v. Lendon, 1 El. & El. 825; Collins v. Locke, 4 App. Cas. 674; Dawson v. Fitzgerald, 1 Exch. Div. 257; Reed v. Insurance Co., 138 Mass. 572; Seward v. City of Rochester, 109 N. Y. 164, 16 N. E. 348; Insurance Co. v. Pulver, 126 TIl. 329, 18 N. E. 804; Crossley v. Insurance Co., 27 Fed. 30. There is nothing in the terms of this policy which ex· pressly or by implication forbids the insured from bringing suit until after the amount of loss has been SUbmitted to arbitration and an award has been made, and therefore we must consider the provisions in the policy relating to this subject as constituting a collateral and independent agreement, and not one which was a con.. dition precedent to the right of maintaining an action.
'We start, theplaintiffl).ad'adght. to bring suit any time after 60 days from the receipt of proper, proofs of loss by the defendant, and it is clear that thepresentac- . tion was not brought until more than 60 days after the receipt of such pl'oofs of loss. . . But it is contended that the evidence which was offered and excludedin the court below was to the effect that an agreement for submission was entered into between the parties, and an award made. We find, however, in the agreement of submission, this express provision:
"It Is further expressly understood and agreed that this submission to appraisers is not, hnd shall not be construed into, a waiver ot any ot the rights or defenses ot either party."
By this' provision the parties expressly reserved to themselves all the rights which they possessed under the poUcy, and the plaintiff thereby' reserved the right of bringing suit; .which the possessed independently of any award. This cHmse was evidently intended to gual,'dagainst the waiver; by virtue of the submission, of any right possessed by either party. The plaintiff further contends that this evidence was"properly reby the terms of the' policy, before should be anystll)tnission, the insurance company should firstlllake an estimate qf the loss .as well as the insured, and then, if there were a appraisers shoulq be selected; that ;the .evidence offered not disclose that the insurance company had ever made any estImate of loss, but only the assured; and that, therefore, the under which a submission could properly take place had not been complied with. The policy further provides that the appraisers chosen "shall first select a competent and disinterested umpire," but in the evidence o:«ere.d it did not appear that any such umpire was chosen. Upon the. whole, we are clearly of opinion that the court below committed no error in excluding the agreement to submit, the award, and the documents relating thereto. Other assignments of error relate to the alleged improper admission of certain witnesses to testify as experts, on the ground of want of qualification. Whether a witness is qualified to testify as an expert is to be passed upon and determined by the court below. It is a largely within the discretion of the presiding judge, and his determination is generally conclusive. Spring Co. v. Edgar, 99 U. S. 645; Tucker v. Railroad Co., 118 Mass. 546; Perkins v. Stickney, 132 Mass. 217; Lawrence v. ,Boston,. 119 J\Iass. 126. Nor do we find any error in the refusal to :admit the evidence contaIned in the deposition of Samuel R. White. The evidence was plainly unintelligible, and. liable to mislead, in the form in which it was presented. . As to the examination of the plaintiff, who was called as a witness by the defendant, the order of his examination was within the discretion of the court, and therefore affords no ground of error. The charge of the presiding judge relating to overinsu.rance was correct, because the mortgagee clause contained a provision that
tlie mortgagee should not suffer for any act or neglect of the mortgagor or owner of the property. Consequently, if the mortgagor obtained more insurance than he was entitled to, it was his own act, and could not affect the rights of the mortgagee: The fact that th'e 'policies were in the possession of the mortgagee did not make him a party in obtaining any excess of insurance which may have ex· isted. With respect to the Concord policy which the evidence tended to show was obtained by the mortgagee or plaintiff, trustee, we think the court was right in charging the jury that, if such insurance was taken out at the request of the mortgagor, it would be his act, and not the act of the trustee; and, further, if they believed it was the act of the trustee, and that at the ime of issuing such policy the whole amount of insurance then existing, including the policy in question, did not exceed the amount permitted, it could not invalidate his claim under this policy. Upon the whole, we can find no error in the court below, and it follows that the exceptions must be overruled, and judgment affirmed.
COAL CO. v. BEVIL et at (Circuit Court ot Appeals, Eighth Circuit. No. 349.
IlmUN WRONGFUL ACT. STATUTES IN FORCE-ACTION FOR DEATH BY
May 21, 1894.)
Under Act May 2, 1890, § 31, which extends over the Indian Territory, certain laws of Arkansas, as published In Mansfield's Digest, "which are not locally Inapplicable or In confiict with this act or with any law of congress. relating to the subjects specially mentioned In this section." enumerating chapters of said digest by title and number, among them "Plead· ings and Practice, chapter 119," section 5225 ot that chapter, allowing recovery of damages for death by negligence, cannot be excluded on the ground that it does not relate to pleadings and practice, as the intent was to adopt the provisions of the enumerated chapters as a whole. unless they were locally inapplicable, or in conilict with the act or some other existing act of congress.
CONDUCT OF EMPLOYE IN PARTICULAR
OPINION EVIDENCE -
Testimony that the conduct ot an employe In a particular line ot duty, in which he had been engaged but one day, was very Imprudent, given by a witness who had very little opportunity to observe his condllct In that capacity, without detailing the facts on which such opinion was predicated, Is incompetent to show that he was lmflt to be so employed because of his carelessness. "
In Error to the United States Court in the Indian Territory. This was an action by Etta Bevil and others against the Ardmore Coal Company for damages for the death of Henry Bevil. At the trial the jury found a verdict for plaintiffs. Judgment was entered thereon. Defendant brought error. W. A. Ledbetter, for plaintiff in error. W. B. Johnson, A. C. Croce, and Lee Cruce, for defendants in error. Before CALDWELL and SANBORN, Circuit Judges, and THAY. ER, DiMtrict Judge. "