
    Sykes v. Royal Casualty Co.
    [72 South. 147.]
    Insurance. Accident insurance. Agreement for arbitration. Waiver.
    
    In a suit on an accident insurance policy containing a clause providing for arbitration and a clause providing that no suit shall be brought on the policy under sixty days from the date of final proof, where the insurance company did not request arbitration and since arbitration clauses are put in policies of insurance wholly for the protection of the insurer, and in view of the fact that insurance policies invariably provide that no suit can be maintained until sixty days have elapsed from the date of final proof, the rule is that the insurer waives its rights to an arbitration unless it is requested before suit is brought.
    Appeal from the circuit court of Monroe county.
    Hon. Claude Clayton, Judge.
    Suit by T. B. Sykes against the Royal Casualty Company. From a judgment of the circuit court dismissing the case on appeal by default frbm a judgment of a justice of the peadfe court for plaintiff, plaintiff appeals.
    The facts are fully stated in the opinion of the court.
    
      Sykes <£ Sykes, for appellant.
    
      Paine & Paine, for appellee.
   Potter., J.,

delivered the opinion of the court.

This suit was commenced in a justice of the peace court in Monroe county by the appellant filing suit against appellee on an accident insurance policy. Judgment was obtained by the appellant in the justice court, and appellee appealed to the circuit court, and in that court after evidence had been produced by both the plaintiff and the defendant with reference to the extent of the plaintiff’s injuries, and after both sides had rested, the defendant moved the court first to grant it a peremptory instruction, but afterwards withdrew this motion and moved the court to dismiss the ease without prejudice upon the ground that the policy of insurance upon which the plaintiff sought to recover contained the following arbitration clause:

“It is agreed that, in case a dispute shall arise as to any claim under this policy, the same shall be submitted to a commission of arbitration, composed of three arbitrators, to be chosen as follows: One by the company, one by the assured or beneficiary, as the case may be, and the other to be mutually agreed upon by the company and the assured or beneficiary. The award of said commission of arbitration shall in all cases be final, and no suit or proceeding's at law shall be maintained except to enforce such award.”

The motion to dismiss was sustained by the court upon the ground that the plaintiff had brought his suit without first offering to settle the differences between himself and the insurance company by arbitration under the terms of the above agreement. The policy of insurance under consideration contained the usual clause providing that no suit shall be brought on said policy under sixty days from date of final proof.

The insurance company in this case did not request an arbitration, but the court held that no suit could be brought on the policy until the assured had himself requested an arbitration and there are many authorities supporting this position. However, arbitration clauses are put in policies of insurance wholly for the protection of the insurer, and, in view of the fact that insurance policies invariably provide that no suit can be maintained until sixty days have elapsed from the date of final proof, we prefer to adopt the rule that the insurer waives its right to an arbitration unless it is requested before suit is brought. This view is supported by the following authorities: Continental Ins. Co. v. Vallandingham, 116 Ky. 287, 76 S. W., 22, 105 Am. St. Rep. 218; Randall v. Phoenix Fire Ins. Co., 10 Mont. 362, 25 Pac. 960; Randall v. L. & G. Ins. Co., 10 Mont. 368, 25 Pac. 962; Tilley v. Conneticut Fire Ins. Co., 86 Va. 811, 80 S. E. 120; Chainless Cycle Mfg. Co. v. Security Ins. Co., 169 N. Y., 304, 62 N. E. 392; Lawrence et al. v. Niagara Fire Ins. Co., 2 App. Div. 267, 37 N. Y. Supp. 811.

Reversed and remanded.  