The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-06-18
FulI Textotth, ghn,gc,

Gentlemen OF tho Jury-lIccauso Il is
the leading question In these eases, the
Court int invites yonr attention to the
conditions Of the policies known as the
ARBITRATION CLAUSES.
Prior TO the case OF Scott vs. Avery
IS II. L. Chs. Slll. Of which You have
learl so much in tho argument the ar
bilration clauses then existing in policies
u insurance were not generally sustained
because they intrenched upon "thc liz.
criy and dominion Of the courts" or
''oustod them OF their Jurisdiction by
mere agreement OF the parties rs II was
more generally expressed. Immediately
upon the decision OF that case the judges
and the lawyers commenced 10 disagree
about lis meaning, aud have kept II up TO
this day. An eminent lawyer OF that day
= shaped the arbitration clause In that case
70 meet the objection above mentioned,
and sought TO bring il within familiar
and universally recognized principle Of the
common law, that one might make his
liability depend upon any lawful condition
whatever, and that ho might lawfully
covenant 10 pay onlyso much as some third
party might say he should pay. Curiously
enough, this same lawyer had become q
Judge when mis- conlriyance came up Tor
Judgment, though, OF course, lac did not
decide It, and II was sustained. When
the courts came 30 administer the rule laid
down, Trough seemingly simple enough
It's application became and remains e
- a ttaA Al Ia.
spends upon the phrascol0gy Of each par
iicular policy. There being differences N
90 the scope OF the case, the INSURANCE,
companies commenced 10 conform the
policies In phraseology, some 10 the widcs
Interpretation OF the principle aud som,
o. very much narrower one. Curiousl,
again, one Of the dissenting judges In tina
case, who was In favor OF adhcfing 10 thl
old rule, treated the decision against hi
views "a oycrruling the old eases and at
tached himself 10 the broadcast school q
interpreters In favor Of the most extensiv
arbitration Of all questions VI law and fac
that might arise between the insurer an,
the insured under the policy, aud only ~
quircd that the award should, by the pol
icy, DO made condition precedent
whether the differences be of Law or fac
aud he enforced the nowly csiablishe
policy, a. he contcnded, by tho most IN
eral Interpretation OF the language OF III
policy and brought almost any ngrccmci
10 arhimto within The rule Of conditio
precedent.
On the other hand, ono Of the counsel
the insurance companies Ia that case su
sequcnly becoming himself n judge, a
tachcd himself 10 the narrower school
Interpreters. denied that the old cas-
were oycrrulcd and limited the Lords q
cision within comparatively mcagcr pr
portions, holding that substantially on
the amount due 10y the Insurance compaI
In case OF loss could DO submitted 10 nrl
traitors. Unfortunately. M We have sc'
IN this case, this Is ambiguous, uomewh1
bucausc In determining only the amou
the arhi,rators might be called upon TO i
terminc any question concerning the l.
In the case. sincr tho amount OF the 10
must depend upon tho settlement at lei
Of all preliminary questions that may va
the amount in the process Of IL arbitl
ton. But what the courts mean Il IN
tic arbitration must b. confined 10 an d
prniscment Of tho ynlue oi {
goods destroyed, or the damage, wht
they are only partially DESTROYED, In th,
cases holding 10 that doctrine.
learned wfitUr n the Am. l.. n,
$40, writing In 1919, shows that there
boon no decision Of acknoWl lodged gene
authority In our American States on Il
question and be shows how the cou
have naturally divided upon IL aud
what entire confusion the whole subject
herr, and this condition Of the law
not improved since he wrote. Eyidcn
the English case, whatever u decidea
no, binding on Ms In America. and .natura
again, our courts would follow the
cases existing before our Revolution d
not theso modern decisions, except Va n
may be persuaded by them. ANY ca
can take liz choice 10 such a conflict
opinion and authority.
No case has been found In Tonnes
and, think, neither the case OF Uni
States W. Kobeson, o Pet, $40, nor
Of the Insurance Company vs. Morsc
Hall, as. can be said 10 control
Judgment. The nut may bo inicrcnti
used In favor Of LIBERALIZATION clauses
the latter against them, but tho court
In mother. passing Judgment on this q
ton. have examined the English {
very closely, N Ear ~ l have
time, and believe that our &C