Dworkin v. Caledonian Ins. Co. , 285 Mo. 342 ( 1920 )

I dissent in this case for the reason that I do not believe that the Legislature ever intended by the Act of 1909, now Section 868, Revised Statutes 1909, to refer to arbitration in the sense that it is used at the common law or in our statutory law upon arbitration. I tried to point out this in Young v. Insurance Co., 269 Mo. l.c. 14 et seq. It was never enacted as a part of our law upon arbitration, as pointed out in that case. The statute used the term "an adjustment by arbitration," and not the word "arbitration" alone. As I read this statute, taking its connection when passed, the legislative intent was to strike at just such provisions as we have before us in the instant contract. Adjustment by arbitration, in the legislative mind, was adjustment by appraisal, or any other means which hampered the right to go into a court of justice. The legislative purpose was to give the party to just such contracts as we have before us, the right to sue, irrespective of the fact that somewhere, hidden in a labyrinth of finely printed provisions, there might be one calling for an appraisal. The insured rarely reads or knows what these finely printed provisions of his contract are, and this statute, as well as others which we have, were intended to prevent his acceptance of such a policy from precluding his unfettered right to go to a court of justice.

It may be that what was said in Young's case, supra, was not absolutely necessary for a decision of that case, but it was written upon the point being specifically made in the brief, as appears from the opinion. But, whether it be obiter or not, in my judgment it declares the correct legislative intent of the statute discussed. For this reason I dissent. Woodson, J., concurs in these views.