, V,, PHOENIX INS, CO.
the train was only 30 feet from him,and in full sight, and yet he did not halt or hesitate,bnt rashly stepped in front of it. It was a quiet night. There was no confusion at the crossing. There were no other trains in sight. There was nothing to distract Blount's attention from the oncoming train except a self-absorption which in approaching a railway crossing is gross negligence. On these faets can reasonable men fairly reach any other conclusion than that Blount was wanting in due care in not observing his danger? We h:\Ve no wish, in expressing this conclusion, to weaken at an the obligation upon the railway company to lower its gates when trains pass, and we freely concede that such a failure is to be regarded as an invitation to the traveler to cross the track in safety. Railway 00. v. Wanless, L. R. 7 H. L.12-15. The extent to which the traveler may rely on such an invitation, and omit the ordinary precautions of looking and listening, is usually a question for the jury. This case, however, we think to be exceptional in its facts, which permit only one inference. As the evidence of the plaintiff's contributory negligence was of such a conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it, it was the duty of the court to direct a verdict for the defendant. Railway Co. v. McDonald (decided by the supreme court of the United States, March 5, 1894) 14 Sup. Ct. 619; Railroad Co. v. Converse, 139 U. S. 469, 472, 11 Sup. Ct. 569, and cases there cited; Elliott v. Railway Co., 150 U. S. 246, 14 Sup. Ct. 85. The judgment of the circuit court is therefore affirmed.
HAMILTON et at. v. PHOENIX INS. CO. OF HARTFORD. (Circuit Court of Appeals, Sixth Circuit. April 3, 1894.)
INSURANCE-PROOF' OF' Loss-ApPRAISEMENT.
Several insurance companies having made a joint demand for a joint appraisal, upon proof of loss by the insured, finally notified the insured in a joint letter that, if the form of "submission to appraisers" which they had submitted contained any provision or condition limiting or defining the duties of the appraisers not prescribed by the several policies, each company would submit its own form, as tbey desired and demanded a submission free from any condition imposed by either party. Held, in a suit against one of said companies, where the policy stipulated for a separate appraisal, that, under the terms of the joint letter, the company thereby waived the appraisal, unless it thereafter submitted a form of appraisal within a reasonable time. Insurance Co. v. Hamilton, 8 C. C. A. 114, 59 Fed. 258, approved. The company demanded a separate appraisal in 17 days after the joint letter was written, and within 60 days after proof of loss by the insured. Held, tb,at the question whether the demand for a separate appraisal was made in a reasonable time was a question for the jury.
SAME-REASONABLE TIME-QUESTION FOR JURY.
The policy provided that the loss was to be paid 60 dlJ.Ys after due notice and satisfactory proof of such loss. Held, that the stipulated 60 days was
the,perlod between the reception the satisfactory proof and the time of payment, and not the· period between the tendering of any proof and 1;)1e acceptance of It as satisfactory. .
'- RlllASONABLE TIME-QUESTION OF LAW FOR THE COURT.
. The question of reasonable time is a question of law for the court in two clllsses of cases, (1) Commercial transactions which happen in the same .way, day after day, present the question of reasonable time on the same data in c9ntinually recurring instances, so that, by a series. of deCisions of the courts, the reasonable time has been rendered certain. (2) the time takep. is so clearly reasonable or unreasonable that there can be ·no room for doubt as to the proper answer to the question. Where the answer to the question is one dependent on many different cl1'cuplstances, which do not constantly recur in other cases of like character; .and with respect to which no certain rule of law has theretofore been laid down, or could be laid down, the question is one of fact for the jury.
OF FACT FOR THE JURY.
Inl!.:rror to the Circuit Court of the United States for the Western of the Southern District of Ohio. This was an action by Robert Hamilton (for whom his executors, Cora B. Hamilton and John W. Bryant, have been substituted) againstthe Phoenix Insurance Compa)ly on a policy of fire insurance. The circuit court directed a verdict for defendant, and rendered judge ment accol'dingly. Plaintiffs sued out· this writ of error.
Robert Hamilton, the testator of the plaintiffs in error, filed his petition against the defendant in error, the Phoenix Insurance Company of Hartford, Conn., Seeking to recover a judgment for'the loss under a fire insurance policy in the sum of $2,500. At the close of the evidence the court directed the jury to return a verdict for the defendant. This was a writ of error tG reverse the judgment entered upon the ve1.'l1ict. The policy sued on was dated April 21, 1885, and provided that in consideration of $25.78 the Phoenix insurance Company insured RobE:rt Hamilton to the amount of $2,500 on his stock of tobacco, manufactured, unmanufactured, and in process of manufacture, and the Illaterials for making same, in his tobacco factory, situated at No. 413 and No. 415 Madison avenue, Covington, Ky. The policy further provided that the amount of loss or damage was to be estimated according to the actual cash value of the insured property at the time of the fire, and was to be paid to the insured, or to the insured's .legal representatives, 60 days aftN' due notice and satisfactory proof of the same should have been received at the office of the company, in accordance with the terms of the policy thereinafter mentioned. The policy provided, further, that "no suit or action of any kind against this wmpany for the recovery of a claim under this policy shall be sustainable in any court of law or chancery, unless commenced within the term of one year from the date of :fI.re; such lapse of time to_ be deemed conclusive evidence against the validity of such claim." The proceedings to be taken in case of loss. were noted in the policy as follows: "When a fire has occurred damaging the property hereby insured, the insured shall give immediate notice, and render a particular account of such loss, signed and sworn to by them; if there is other insurance (whether valid or not), shall give a detailed of same, with copies of the written portion of all policies; shall also give the actual cash value of the property; their interest therein;· the interest of all other parties therein (if any), giving'their names; the amount of loss or damage; for what purpose and by whom the building Insured, or containing the property insured, and the several parts thereof, were used; when and how the fire originated; shall also produce a certificate, under the hand and seal of a magistrate, notary public, or commissioner of deeds, nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor related to the insured, stating that he has examined the circumstances attending the loss, knows the character and condition of the insured, and verily believes that the Insured has, without fraud.
HAMILTON II. PHOENIX INS. CO.
sustained loss on the property insured to the amount which he shall so certify." Further provisions were as follows: "This company may examine the books of account and vouchers of the insured, make extracts from same, and, if required, the insured shall submit to one or more examinations under oath, and sign same when reduced to writing; shall exhibit to the company or its representative all that remains of the property covered by this policy, and, if desired, certified copies of all bills and invoices where originals have been destroyed; and until sixty days after the proofs, examinations, declarations, and certificates herein called for are rendered, inclUding an award by appraisers, when an appraisal has been required, the loss shall not become payable. Proofs of loss in all cases shall be made and signed by the party insured. There can be no abandonment to the company of the property insured, but the company reserves the right to take the whole or any part thereof, at its appraised value." "Differences to be submitted to appraisers: If differences of opinion arise between the parties hereto, as to the amount of loss or damage, that question shall be referred to two disinterested men, each party to select one (and, in case of disagreement, they to select a third), who shall ascertain, estimate, and appraise the loss or damage, and the award of any two in writing shall be binding on the parties hereto as to the amount of such loss or damage, and each party shall pay one-half the expense of reference. When personal property is damaged, the insured shall put it in the best order possible, and make an inventory thereof, naming the quality and cost of each article, and the amount claimed on each, and upon each article the damage shall be separately appraised in the manner above provided. Detailed reports of the appraisers in writing, under oath, shall form a part of the proofs hereby required." The petition of the plaintiff, after setting out the terms of the policy as above, averred that the property insured was worth $47,172.77; that on the 16th day of April, 1886, this property was partially destroyed by fire, with a loss of $30,000; that on the 24th day of April, of the same year, the plaintiff gave notice of the loss to the defendant, and delivered to the defendant due proofs of said loss, as provided by said policy; that the plaintiff had done and performed all the conditions in the policy contained on his part to be kept and performed; that, in pursuance of the privilege in said policy contained, he (plaintiff) had further insurance on the property. amounting altogether, with the insurance provided by this policy, to the aggregate sum of $40,000; that, by the terms of said policy, he became and was entitled to recover of the defendant the proportion of the loss so sustained which the sum insured by the said defendant's policy bore to the whole amount insured as aforesaid, to wit, the sum of $1,875, with interest thereon from April 16, 1886In the answer the defendant company admitted the execution of the policy, and that there had been a loss, but denied the value set upon the property insured and the amount of the loss as averred. The answer further admitted receiving due notice of the loss, but denied that proper proofs of loss had been filed, as required by the policy, and denied the performance of other condi· tions thereof as averred. The answer further averred "that serious difference as to the amount of loss or damage, irreconcilable by the parties, did oc· cur; the plaintiff claiming that damage amounting to $40,000 arose, $2,500 of which was payable by the defendants, whereas the defendants claimed and believed that the loss was very slight, and but a small part of the amount so claimed by the plaintiff, and of an uncertain character, requi,ring a careful examination of disinterested arbitrators; that the damage and loss should be ascertained by such appraisal and award, and that the same should be submit· ted as a part of the proof, and it insisted upon the same as a means of determining said loss and of such proof; that the plaintiff neglected and refused to permit any such appraisal and award, and, against the protest of defendants, sold at public auction all the said property, and thereby put it out of the power of the parties to have the appraisal, arbitration, or award, or to take the property in whole or in part at such appraisal, or to have such proof of loss, and therefore the defendant says the plaintiff cannot recover in this action." Plaintiff, in reply, denied that the defendant requested the plaintiff, in writ· ing, that the amount of said loss be left to competent and impartial persons,
,PfPvldedln tbe policy; denied that he did not permit an appraisement to ,bewBde In accordance with the provIsions of the polieyt Rnd f,lverred, on the ,4Qntl'ary, that the plalntitr demanded In. writing thattlw amount of the ioss JlJllStBlnedby tbeplaiatltrshould be submitted to arbitration, as provided in and thatdetendant refused so rtosubmlt S.ame. The replyturther denied that the plaintiff prevented ltn .appralsal ot the damaged stock, and .deprived the deteDdantot the right to h.ave an apprMsnlthereof made or to take,the aame at sueh /lppraisal, and that the ,only demand for a submi$slQ1lof .such diffeJl'ences or any matter, connected with said policy of Insurallcetbat was made .bydefendant upon plaintiff was made by defendant upon plaintiff in connection with and as 'partGt a joint demand of dIvers other insurlUlcecompanies having policies of insurance upon said property in favor of,plaIntiff,and covering the same loss: and that such demand was for .the submillsion to arbitratorll, whose award should be binding on the parties as totbe amount of suCh loss or damage; and that. it was not true that the detendant ever made any demand of plaintilf.for a submission of such dlfterences to appraisers and for-appraisal. The third paragraph of the reply-wasas follows: "And plaintitr further says that he, on or about the 26th dayot;Aprll, 1886, made and deUvel'ed to the defendant due proofs of his loss under said policy, as averred in the petition, with the request accompanying said proofs of loss that any defects in their substance or their form might be pointed out, and the proofs, retl'rned to plaintiff, so that he might perfect the sa.meto,the defendant's satisfaction; that said proofs and request were then I\Jld there received by said defendant; but said defendant did not then, nor did it 'afterwards, object to or point out any defect or omission in the form or sufficiency of said proofs of loss, nor did it return the same to the plaintitr;that thereby, Ilndby defendant's further acts and silence in the premises, tbe defendant has waived its rights to now object in any manner to the form or su1ficiency Of said proofBof loss, and has waived its right to ask or require of the plaintiff any other or di1ferent proofs of loss than were heretofore made and delivered to the defendant by pla'intift as alleged in his petition." . , , On the trial, 'counsel tor the plaintift,atter o1ferlngthe policy ot Insurance sued on, also offered the arbitration and appraisement clause in thepolicles of the London & Liverpool & Globe Insurance Company and the Home Insurance Company Issued to plaintiff, to that the arbitration clauses in them were very, di:trerent from that in the defendant company's policy, and that there could not be a joint submission to arbitrators or appraisers conforming to the policies of all the Insuring companies. Plalntltr introduced the tol,iowlng letter: "Covington, Ky., April 26, 1886. "Dflar Sirs: I inclose proof of loss under policy of your company, with Invoice attached, in compliance with the reqUirements of the policy. If there is any defect 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' lJ1'\"olced and arranged,:llnd '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 hivolves considerable loss and expense to me. As before advised, I propose to send 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. Please acknowledge receipt of above proofs by return mall. . "Very truly yours, Robert Hamilton." The proofs of loss w,ere' also Introduced. They contained an inventory of the property injured and an estimate that the amount of the loss on the property was $40,000, which the lJ1sured claimed as the loss on the whole property, and against this Phoenix Company the sum of $2,500. The parties stipulated that the amount of plalnti1f's recovery, if anything, should be fixed at $11,588, with interest from June 16, 1886. There was also introduced a letter from the agents of the PhoeniX Insurance Company ac-
HAMILTON ".PHOENIX INS. CO.
knowledglng receipt of proofs of loss, dated April 27, 1886", and stating that the same would be forwarded to the company, and that the plaintiff would hear from it. The plaintiff thereupon rested his case, and the defendant o:trered a letter of April 28th, signed by all the 12 irisuring companies, and sent to plaintUf: "Cincinnati, 0., April 28, 1886. "Robert Hamilton, Esq., Covini;rton, Ky.-Dear Sir: The undersigned, representing the several insurance companies against which you have made claim for loss under theirI,'espective policies of Insurance upon stock in your tobacco factory, Nos. 413 and 415 Madison street, Covington, Kentucky, claimed to have been damaged by fire of 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 polio. cies of insurance under which claim is made; and we hereby announce oUl" .readiness to proceed at once with this appraisement, so soon as your agree-· ment 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. You may address your reply to the joint demand made above in care of the London & Liverpool & Globe Insurance Company, Third and Main streets, Cincinnati. Waiving none of the rights of the several companies under the terms of their respective policies, we are "Very respectfully yours." 'There followed, in ansWer to this, a lengthy correspondence, which is known as "the joint correspondence" in this controversy. It is set out in full in the case of Hamilton v. Insu'.'ance Co., 136 U. S., 242, beginning on page 247, and ending at the top of page 252, 10 Sup. Ct. 945, with the letter of May 7, 1886, which is asfollows: "Cincinnati, 0., May 7, 1886. "E. W. Kittredge, Esq., City-Dear Sir: 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 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 con'ectly state OUt· position, which remains now as stated in om 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 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 poIlcies, each company will submit its own form, as we desire and demand a submission free from any conditions imposed by either party. "Very truly, J. M. De Camp, General Agent." The same joint correspondence is referred to and commented on In the case of Insurance Co. v. Hamilton, 8 C. C. A. 114, 59 Fed. 258, in the opinions of Judges severens and Swan; There was no letter after May 7, 1886, between Hamilton l).nd the defendant company, until May 20,1886. when the followiug was written by Mr. Kittredge, as attorney for Robert Hamilton: "Cincinnati, 0., May 20th, 1886. "The Phoenix Insurance Company of Hartford-Dear Sirs: I beg to inclose a notice from yesterday's Covington Dally Commonwealth of the sale of the tobacco and articles in said notice named of Robert Hamilton, by you insured. "Very truly yours, E. W. Kittredge. "By E. K. Stallo."
Upon May 24th the fQllowlng' answer was received from the general agent of tbe Insurance'Oompany: "E. W, Kittredge, on Behalf of Robert HaJjlllton, Oinclnnatl; 'Ohio: Your favor of the 20th inst. Is at hand, in which you inclose notice of sale of Ro1;lert Hamilton, of c;ovington, Kentucky, the same being In part insured'bythls company, under pollcy No. 5,044. Our reply to this notice is a respectfUl reference to the -COIJlditions of the pollcy named, and a reiteration of our demand for -lrbitratlon In accordance with the provisions therein expressly defined. The proposed sale of the propertY 'insured by this company is against our protest, It being In direct conflict with the spirit and intention ()f the contract, asa1l'ecting rights and privileges of the insured and Insurer, and your cllent's action In defiance thereof must be consiuered at bls own risk and peril, and as barring him from maintaining any clfti'n for 1·)ss 4)1', damage should he persist in so doing. We are still ready to arbitrate as tbe policy provides (see :extract below), and beg to say that none of the eonnltiClDs of said instrnment have by us, 01' by anyone in our behalf, been waived, or are Intended to be waived, by anything said in this communication. H. M. Magill, General Agent." "Respectfully,
-To which this reply was sent by Mr. Kittredge, for Robert Hamilton, under -date of June 3d: "H. 'M. Magill, General Agent-Dear Sir: Your favor of the 24th ult. is received In respect to the matter of the insurance by your company of Robert Hamilton, of COvington, Kentucky, under policy No. 5,044. I regret to ditl'er with your company in respect to the right of Robert Hamilton to make sale of the damaged property insured, but, inasmuch as Mr. Hamilton has already sold all the property in question, in accordance with the notice sent to youreompany, it does not seem necessary to me to discuss this point further. If your company really desires to submit the question of the amount of the loss sustained by Mr. Hamilton to arbitration, notwithstanding ail that has transplted, Mr. Hamilton Is quite ready now to submit that question to competent and impartial arbitrators. He simply demands, the arbitrators being selected, that in the agreement for submission it be provided that the' company and the insured shall be notified of the time of the hearing by the arbitrators, and that the arbitrators shall hear all competent legal testimony that may be olfered by either party, and that a reasonable time be prescribed within which the award shall be made. If your company de1illre or will consent to a submission to arbitrators to fix the amount of loss .as above proposed, and will select an arbitrator for that purpose, Mr. Hamilton will do the like, and the submission should be had forthwith. I will prepare an agreement for submission upon the above terms at once upon being notified' by you of your willingness to make it. I beg to call your attention to the fact that yoUr' policy limits the' time within which Mr. Hamilton must commence his action under it, and prescribes the time when a suit may be brought, and he cannot contemplate a postponement of this question of arbitration to any time inconsistent with his right to bring his action and to prosecute his right In a court of law. "Yours very respectfully. E. W. Kittredge, "For Robert Hamilton." -To which the insurance company answered as follows: "June 5th, 1886. "E. W. Kittredge, Esq., Cincinnati, Ohio-Dear Sir: We have carefully read and fully 'considered your valued favor of the 3d Instant. relative to the HamiltoncIij.lm at Covington, Ky., under policy No. 5,()44 of the company. For reply we deem proper to say that, in our jUdgment, at least, the aim .and object o:!l the arbitration having been defeated by the action of your client in disposing of the property on which a loss or damage Is claimed, contrary to our written protest, and in defiance of our stipulated rights under the contract, we do not see how it is possible now to arbitrate or to estimate the amount of sucb loss or damage, If any. The goods have been disposed ()f, and are beyond the reach of the claimant, and, this being the case, there Is nothing further that we can possibly do under the contract. We must,
HAMlLTON . ". PHOENIX INS. CO;
therefore, lle to stand squarely upon the condItions of,· the Insurance contract, which are fully set forth in. the policy, and to respectfully refer you again to our letter of the 24th ultimo, and to previoWl letters sent jointly with other companies interested in the claim. Referring 'to the closing paragraph of your communication, permit us to say that the following is the clause in the condltlon of our polley alluded to by you,' which limits the time in which the claimant may commence an action under a policy against this company: 'No suit or action of any kind against this company for the recovery ot a claim under this policy shall be sustainable in any court of law or chancery unless commenced within the term of one year from the date of fire. Such lapse of time shall be deemed conclusive evidence against the validity of such claim.'. From this you will observe that your client has ample time in Which. to 'commence this action,' should be desire to test the validity of the various' clauses In our policy touching 'proceedings in case of loss' to ascertain, estimate, and appraise the same. In conclusion, for your personal convenience, permit us to inclose you herewltha copy of the Phoenix policy, and remain, with much respect, H. M. Magill, Gen'l Agt." "Yours very truly,
Kittredge, Wilby & Simmons, for plaintiffs in error. Stephens, Lincoln & Smith, Thompson, Richards & Park, and Paxton, Warrington & Boutet (Oharles H. Stephens, Ohanning Richards, and T. B. Paxton, of counsel),.for defendant in error. Before TAFT and LURTON, Circuit Judges, and RICKS, District Judge. TAFT, Circuit Judge, after stating the facts as above, delivered the opinion of the court. In the case of Insurance, Co. v. Hamilton, reported in 8 O. O. A. 114, 59 Fed. 258, it was held by this court, all the judges concurring, that the joint demand for a joint appraisal by the 12 insurance contpanies contained in the joint correspondence was not within the terms of the policy of theOonnecticut Fire Insurance Company providing for an appraisal, for the reason that such a policy stipulated for a separate appraisal. This holding is equally applicable to the case at bar, for the appraisal clauses in the Oonnecticut and Phoenix policies are substantially similar. In the Oonnecticut case, JudgeSeverens, referring to the demand for an appraisal in the joint correspondence, said:
"This was not a demand for an appraisal by the insurance company such as its policy gave· it a right to make. It did not acquire its rights in any respect from the policies of other companies, and it had no legal concern with theIr disputes or the mode to be adopted for their settlement, and had no obligation to champion their cause or mix its controversy with theirs; and the insured was not bound to accept such proposition for determining the value and damage as was demanded by the companies, this among them. If he had done so, it would have been an arbitration aside and independent of the policy, standing on the general ground of common-law arbitration."
Judge Severens was of the opinion, however, that the joint correspondence did contain a notice that the loss fixed in the proofs was not satisfactory to the insurer, and that, therefore, an appraisal became a condition precedent to the payment of any money under the policy, and that, by the sale of the property before the expiration of the 60 days, Hamilton had rendered such an appraisal impossible, had prevented the performance of the condition precedent, and had therefore deprived himself of any right of recovery under the policy. v.61F.noA-·25
was novia cond,;t!on J!fi·.r. . ... . .·'...iit.tl.,'. ; t.. . .t, ·. 'ht. i:rl;).·.'. ..', e' a waiTer of such, ,'te. , tl.ie p beenlJJiedl and not the:insurancecompany 'was, that' of, the }he whjle the, JOInt not wdthio",tb.e terms,of the,pohcy, that there walt enough cOl'respon.4en'Ceto i l,1otify Hamilto'p that the Connecticut of a,n<J. ptlQf!!SWlth ,anappL'alsala condltlon il'l:!cQvery of,theJossunder the policy, But it seemed to me toot by thelastletterifrbl11 all the companies of May 7, ,each company f\Ssumed anobligatibn to initiative in of a.ppraisall and submit a form of apprllJsal to Ifamilton, failing which the the,oefect in the pCOd!siO'l,IQssn1ndeby; theiabs.ence of the appraisal. 'lfanappmisnl tlle goods,at an appraised value went with it, and it was·theoofbrrelimmatem-alWhat had been done with llU}guage uS!ed i;n tbe opinion:
4 1..' . ,
"By tWs letter the defendant company assumed an obligation to submit a form of appraisal to Hamilton. Whatever duty under the policy there IJ+ilflj1t t9 take t1).e an appraisement after receiving notIce of a disagreement as to valuation. so as to fuI.. fill the cop.dftion precedent to his recovery, this communication was a clear 6l:!fendant company. It was a cle,ar Invitation waiver of that duty by, to HaD;liltontoido nothing uiltH tM company had acted. The company Dever' ro S4y that Hamilton last all his rights did act.. under the .,wliiQ1l tIle company.' itself. occall!Plled.. The apa part of the proof Qf.lQss. '. T1:le conduct pralsewenl say: 'We have your proof of loss; we of the object to it; . and we: will 'hereafter point. but' to you the method by which it can be ," failure to point out the Ulethodof remedying it estops the coplPllny from.as!"ffiiing that proof of loss does Dot comply , with the requfreillents of the, polley."
,lam tOSaY'Jthatthe court,as at present constituted, concurEl in the view just stated of the effect of the letter of May 7th, thl! of the the policy ill101ved In theCp.nnecbclltFire lnsumnce Company)Case; and, as that policy is in"all substantialrespects the same as the nne in suit at bo,l', we are of tliedpini(jit that if the'Phoenix Company as, Oompany did fail, to take any after letter Qf May 7th" it icould not now be heard to claim that the 'prOofsof}ossalready1Uedwere nota suffieientcompliance "ithevery condition precedent to a recovery of the actual 10SIll' In thiltcase,howev:er, the Pnoenix'lnsurance Company did,' on ::M.ay. 24th, male:a demand Ifor arbitration in accol'dance with the Pl1ol'isions policyjand' protestedltgainst the,proposed sale of property insured, asib'direct conftiet with the of themSllret', We are (i)f the opinion that iHhts letter was written within 'a' , reasonable timeiaf'E.m the iletter of Y,_y 7, 1886,crosing the joint correspondence; it did .properly and unquestionably demand an ap8:Iid,that a failure to comply therewithwllS a failure of
HAMIL'r6N V. PHOENIX INS. CO.
the condition to the' recovei-yunder this policy, which must .defeat the plaintiff's right of action. In words, we think the question in the case, as now presented, is whether the demand for a separatp appraisal, in accordance with the terms of the policy of the Phoenix Insurance Company, was made within a reaElonable time after thp dose of the joirit correspondence. Thl'courr below treated the question of reasonable time as one of law, and told the jury that a sufficient demand for a separate appraisal within due time had been made, and thereupon directed a verdict for defendant. It is contended on behalf of plaintiff in error that, under the circumstances of this case, the question of what was rer.sonablc time was a mixed question of law and fact, to be left with the jury with proper instructions.. The delay between the close of the joint correspondence and the letter demanding a appraisement from the Phoenix Insurance Company was 17 days. The provision of the policy was that the loss was to be paid 60 days after due notice and satisfactory proof of the same had been received at the office in accordance with the terms of the policy. The learned trial judge seems to have thought the effect of this clause to be that the company had 60 days within which to object tofhe proofs of loss. Was this a proper inference? Could the company wait until the fifty-ninth day after receiving proof, and then object to it, and postpone the time of payment for 60 days more? It seems to us clear that the C(i)mpany would have no right to do so. The 60 days is the period between the' reception of the satisfactory proof arid the time of payment, and not the period between. the tendering of any proof and the acceptance of it as satisfactory.. · It is true that a delay of 60 Qays before rejecting a proof of loss would certainly be unreasonable, but it by no means follows that any timeshort of 60 days would be reasonable. The reasonableness of time depends on all the surrounding circumstances. In the opening of the negotiations, Hamilton had informed all the companies, includ· ing the defendant, that delay in the settlement so much with his business as to cost him $500 a day. The negotiations for a joint appraisal occupied from April 26th until May 7th, during which Hamilton was constantly pressing for an early settlement When, then, on the 7th of May, the Phoenix Insurance Company assumed to submit a form of appraisal, it was certainly under an obligation to act with greater celerity than at the beginning of the negotiation in April. If the company had the right to delay submission of an appraisal for 17 days from May 7th, then it had the right to delay for a longer time the sale of the stock of goods, because appraisal and notice of sale must take place thereafter. These and many other circumstances might be relevant in considering the question of reasonable time. A case just like this has probably never occurred before; It is not quite clear what the delay was for. n might have been to investigate further the amount of the loss, or to secure the services of a proper appraiser. At all .events, the circumstances are numerous enough to render the inference as to reasonable time from them ,not so certain as to make it a question of law.
'We,li\XemeHn this view, however, by the vigorous contention oJ!. ,counsel for the compally that the question of rel1.sonable time ilil ah"aY8" a question of law, to, be decided by the court. If it should feel compelled to go onand,consil1er the quest,i,op a, of 17,(iays-was not aJl unreasonable time tor 'the 'company ,'t9, delay its demand tor an appraisement; the contention by counsel for the but, as w;e ,new th,e be ,sustained. Tindal v. 1 Term R. 168, Lord' Miipstlet'd ',.' , said: '', , . .! :: .":;i.i "
"WhatlsJ;AASpns,PJ,e n\)tice is partly a question of fact and ,partly It question oqaw. rule can be laid down with re,spect to this rea'shoUld be decided by the court and adhered to by every one, for tlltllsakEflOfCertainty." '
, 6 CraD;ch, w,as on a policy of marme Insurance" a:l;}d one questIon was whether the assured had the' wUnin!, it reasonable made an time. Chief said: '
, ';The ,law that" to. be, eftectual, must be made In reasonable but 'wp.at time is, reasonable is a question, compounded of fact and IM\*li\vhich has not yet been reduced to such certainty as to enable the court to, pronowWeupon It without the' aid of a' jury. Certainly enable every man to dllclare, withouthesitatlon, that all Will lm,v:e been xnade.in, reasonable, time; but there may be such a: medium 1)etween these extremes as to render it doubtful whether the delay has 'been'rellsonable or' otherwise. ',,If "it was' a mere question, of law, wh.l4h the eoW!t: might decide, then the law would determine, to A day and, anhl>ur, 9n !filft for delibllration, after receiving notice of, the loss. ,':!;tut the PM,)lotso determlnell, and It therefore remains a question, compounded of fact llnd law, which must be found by a jury, under thedlrei:!'tiCin 'OfthecoiQrt." ' ,
In Cockei' ;17.' Wlthm II Mr.
3 Sumn.5M,;Fed;'Cas. No. 2,932, England.had tIme was submItted to the JUry.
"The, w):J.olel;luest!on now, b,efo;r:e the jury la, whether theile articles were manufacturM and offered, to. be' llelivered within a' reasonable time. That reasonable time must be judged of by all theclrcumstances, and,ol' course, with all the naturaI.caleuUttiolls, which might fairly the distance of the countries, the BElasoll; :the state ,of the II1arkets, and orders, the pressure ofl:msiness, the .common di!!llppointments ,and, retardations Incident to the manufacture of new article."
In Facey v. Barn. & C. 213, the question was whether the crop out of which the tithe was to be collected had been left on the ground a reasonable time for the tithe owner to compare the tenth set out for him with the residue. The court said:
"':l'here are certainly cases where It Is for the judge to say what Is a reasonable time" but in thill instance the question dept:lnded on a variety of such as the l'«;!sidence of the respective parties, the time when notice was given that the corn would be tithed, the state of the weather, and .other things most' proper for the consideration of the jury; and I think the 'question was properly left to tht:lm." ,
In D(mahUe, v. Insuran'ce Co., 56 Vt. 374, the stilt was upon an insurance policy, which required that the person claiming remunerationfor loss' shOUld forthWith give notice thereof to the office of the
PHOENIX INS. CO.
company. This was held by the court to mean that he should give notice with due diligence, and within a reasonable time, without unnecessary delay, under all the circumstances of the case; and so it was further held that where the facts and circumstances were many, and the question of reasonableness depended on the general inference from those facts, the inference became a question of fact to be submitted to the jury. To sustain this, the language of the supreme court of Connecticut in Lockwood v. Assurance Co., 47 Conn. 553, is quoted, as follows:
"Extreme cases offered here may be easily determined. Between them there is a wide belt of debatable ground, and cases falUng within it are governed so much by the peculiar circumstances of each case that it is much better to determine the matter as a question of fact."
In Haskins v. Insurance Co., 5 Gray, 432, the question was whether repairs made by insurers under the right reserved in the policy were made within a reasonable time. This depended on the dates of various notices given by the parties, the delay occasioned by the sickness and death of workmen employed, and the peculiar nature of the property. It was held that, although the particular circumstances were not disputed, the question was one of fact to be iOubmitted to the jury. The case of Davis v. Insurance Co., 8 R. L 277, was quite like the present case in its facts. There the suit was upon a policy of fire insurance on the plaintiffs' stock of dry goods in their store in Providence. The goods were burned on the 22d of April, 1862. Preliminary proofs of loss were filed on the 31st day of May, 1862. The defendants made no reply to the claim of proofs until the 19th of June following. The court left it to the jury to say whether the written objection of the defendants to the preliminary proofs of loss of plaintiffs was furnished within a reasonable time. And the supreme court of Rhode Island held this course proper. The court said:
"The question of reasonable time is in many and perhaps most cases a question for the court. It was said by Lord Mansfield, in Tindal v. Brown, 1 Term R. 167: 'Whenever a rule can be laid down with respect to reasonableness, it should be decided by the court, and adhered to by every one for the sake of certainty.' The courts have accordingly in many cases, as in the case of notice of dishonor of a promissory note or blll of exchange, or of notice to quit between landlord and tenant, adopted fixed rules; and there are numerous cases depending on particular facts and circumstances in which a court cannot dispense with the aid of a jury. 1 Starkie, Ev. 455; Howe v. Huntington, 15 Me. 350. The case before us was not a case where, in the language of Lord Mansfield, a rule could be laid down in respect to reasonableness. It belongs to a class of cases in which the circumstances affecting the reasonableness of notice would seldom be the same, and therefore we think the court did not err in leaving the question of reasonableness to the jury."
See, also, Cochran v. Toher, 14 Minn. 385 (Gil. 293); Luckhart v. Ogden, 30 Cal. 548; :M:agee v. Carmack, 13 Ill. 289; 1 Starkie, Ev. 514, 516, and note 1 on 517. The rule is sometimes stated to be that, where the facts are not in dispute, the question of reasonable time is always for the court; but in the foregoing cases the facts were not in dispute. The facts, though undisputed, were so numerous that the inferences from them
, as. W,
of t,4e· time. taken were disputl1bleas. infer" i ' . : '[' . ' . , ' ,
of autbQl';1ties onthls subject is myriad;' and there are d,nwhich .,tlte, rule is i stated; withouit qualifioation that the of reasoD,J';ple time israquestion of law for the court, but ,it.,willbe"tound th&t .!SUeh cases may be divided into The ,class .,embraces commercial transactions two the sa,meway,d.aYUfterday, and present the question of reasonable time on.the same data in continually recurring instances, sotbat, by a seri\¥l9f of the courts, the reasonable time The second class of cases is where the time taken 'is so clearly reasonable or unreasonable'that there can be no room for doubt as to the' piloper answer to the question. 'Where, however, theanawer to the ,question is one dependent on circumstances whichdd:not constantly recur in other many cases of respect 'to which no certain rule of law has ,J1eretoforebeen laid down, or could be laid down, the question is· one of fact fotthe jury. In WiggiJ;ls v. Burkhai01l,1Q Wall. 129, the question was whether an aCCOUJ;lt rendered had been objected to within a reasonable time, so that it could not be introduced as prima facie eyidEmce of its correctness." It, was held: that the question of reasonable time, in such a case, was a queetionof law; that between merchants at home an account ",hjch hae beeJ;l presented, and no objection made thereto after the iapee. of severalposte, tuust 'be. treated, under ordinary circumstances, as being, by acquiescence, a stated account. Now, His opviousthat.in such 4 case' the data upon which a reasonable time can be. fu:ed are few and simple. It ie also obvioue that it is Rf the class of cases constantly recurring with similar circumstances in dealings between merchants, so tJ1at for years it has been settled law that, ill;l.. merchantaUows several posts to go by without objecting to an acpount senUo him, iUs to be regarded as stated. Mr. .Justice Swayne used this language in delivering the opinion of the court:
"The what 'is :J:easonable'time in such Cases is a question below, cannot be sustained. Where for the jury,as (acts are cleal', it is atwa:rs a question exclusively for the court. The was so ruled by tWs in Tolan.d v.Sprague, 12. Pet. 336. Where the proofs areCOntlicting, the,question is a mixed one of, law and of fact. In such ca.ses the court should',instruct the jury as to the law upon the sevupQn by the parties." eral hypothese/3 of f/ilct
. ,He, was and.it was to cases" that thE! rttle, aa he .li!U!-teB1t! apphes. Toland v. Sprague, referred to, was8.Iso a case of a stated account. . .Nunez v.:ql:J,utel, 19 ,Wall. 560, the question was when money foUowin,g contrS!-ctbecame, .
"Columbus, Ga., September 1st, 1865. '. "Due Josepb or oJ:der, $1,619.66, being balance<>f principal and Interest fqr four' years and sh:: months' services. This we will pay as soon as the crop can be sold, or the' money raised from any other source, payable with interest. .., . " "I. M:. Nunez & Co."
HAMIL'1'ON 11. PHOENIX INS. CO.
Buit was brought more than five years after the date of the instrument. The court held that the stipulation secured tb the defendants a reasonable amount of time within which to procure, in one mode or other, the amounts necessary to meet the liability, and that five years was more than a reasonable time, so that the obligation was due at the time suit was brought. In this case there could be no doubt that five years was ample time within which payment should have b.een made. The case comes under the head of the second class of cases mentioned above, because, in the absence of all circl'1mstances, except the instrument itself, everyone wQuld say that five years was an unreasonable delay in paying the debt. In neither of these decisions by the supreme court of the United States is the rule as raid down by Chief Justice Marshall in the case in 6 Cranch, already quoted, criticised or overruled. Indeed, in the very volume (10 Wall.) which contains the case of Wiggins v. Burkham, is the case of Feild v. Farrington, at page 141, in which the question was whether factors had held cotton too long in view of a falling market. They held it 10 months, during which time cotton fell from 43 cents to 20 cents. Said Justice Strong, delivering the opinion of the supreme court:
"Whether thIs long delay, in view of a falling market, was in the exerciSe of a sound discretion, good faith, and reasonable diligence, was a question that should have been submitted to the jury. If the delay was unreasonable, if it was in violation of the plaintiffs' duty as factors; they, rather than the defendant, should bear the loss that resulted from it."
In the case of Brewing Co. v. Bullock, 8 C. C. A. 14, 59 Fed. 83, we held that a question of reasonable time was a question of law, citing as authority Wiggins v. Burkham, 10 Wall. 129; but that was a case where the time was so long that no fair-minded man could have any doubt that the delay was unreasonable. There a dealer in rice at New York shipped to a brewing company in Cincinnati two car loads of rice, without any order for the same. The brewing company, by mistake, paid the freight, and took the rice into its ware· house. Its officers discovered the mistake within a week after the receipt of the.rice, and for more than 30 days, when rice was a commodity of :fluctuating market value, with no excuse of any kind for the delay, they failed to notify the shippers that the company would refuse to take the rice. It was held that, from such delay in rejection, acceptance must be conclusively presumed, and that the trial court had the right to treat the matter as one of law. We think that because the case at bar presents so many facts which may more or less affect the question of reasonable time, and because it is not a case, parallels to which, by constantly recurring in courts of justice, have led to the establishment of any certain rule, the question of reasonable time was for the jury. The court erred, therefore, is not submitting it to that tribunal. For this reason, the judgment of the court below is reversed, and a new trial ordered.
FEDERAL 1l.EPOItTER, '9'01.
SPOKANll & N. RY·. Co. v. ZIEGLER. (Circuit Court !of Appeals, Ninth'Oircuit. April 12, 1894.) .
PqBLICLAlS'Ds-RIGHT OF WAY OF RAILROADS,
Act March 3, 1875, which provides that "the right of way through the,public lands of the States is hereby granted" to any ganized ra.l1way company which shall perform the. conditions prescribed 9Y the'!lct; does not entitle such company to a right of way over lands wpicl1 the possession a qualified pre-emptor who has made final proof, tendered the purChase money, and demanded his final receipt.
1)O:VAIN-COMPENSA.TJON. . .
Uncler the. laws of the territory of Washington whicb provide that where . land is 'taken for the rIght of way of a railroa,icompensatioo shall be maileto the owner "irrespective of any locI'eased value thereof by reason ofthe.propoliled improvement," any question as to the value of the land belote anci after the road was bullt Is Irrelevant.
In Error to the Circuit Court of the United States for the District of Washington; Eastern Division. This was.an action by Ziegler against the Spokane Falls & Northern Railway Company, in which plaintiff had judgment and defend-. ant brings error. Jay H. Adams and McBride & Allen, for plaintiff in error· . George Turner, for defendant in error. Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.
Circuit Judge. This case comes on writ of error frqm the court, fo... ,the district of .Washington, eastern divisioI!, ,De:t:endant in error recovered: jUdgment, after· a verdict by ju.rY,againstplaintiff in error, for damages for an appropriation of a strip of land, part of theE. ,!of S. E. 't, section 4, township 25, rallge43 E."W. ¥. 'rb,edefendant in error was, on the 1st day of iU.PQssession 'of said land as a pre-emptor, having the quaUfiel'Ltions' of SUCh, and had made final proofs, and had tendered the purcb,ase money, and demanded his final receipt. The In9.Iley was not received,' on account of a contest in the land office. t,rpeplaintiff in error,defendant in the court below, is a corporation under the laws of Washington, for the purpose of constructing and operating a railroad from the city of Spokane Falls, in a northerly direction, through the counties of Spokane and Stevens, to the Columbia river. The evidence also shows that plaintiff in error in the office. of the secretary of the interior a copy of the articles Q..tincorporation, and afterwards, 1n1889, commenced the constructiOn of its road, and surveyed and marked the line of its road, which line ran over the lands' of the defendant in error, and, within 12 IP-Qllths after .locating said line, filed a profile map thereof with the register of the land office of the district in which the land is situated, which map was approved by the secretary of the interior,and afterwards constructed its road; and the plaintiff in error therefore contends that under said acts, and under the act of congress ap-