Defendant's seventy-fifth exception is over

ruled.

[5] Defendant's

did the delay that occurred and his conduct in i fire is a bar to plaintiff's right to recover first bringing the suit, bringing the first suit on the policy. instead of pursuing his terms under the policy, amount to such a neglect of the course called for by the policy as to give you a right to condemn him for not having seasonably followed up his rights. If you find that he did seasonably follow up his rights, he is entitled to a verdict for the loss. If he did not, the defendant is entitled to your verdict."

thirty-second exception

was taken as follows:

"Also to those portions of the charge which instruct the jury that after a failure of appraisal it is as much the duty of the insurer as the duty of the insured to seek a new ap

See Uhrig v. Ins. Co., 31 Hun (N. Y.) 98; praisal." Id., 101 N. Y. 362, 4 N. E. 745.

Defendant's seventy-first and eighty-first exceptions are overruled.

[4] Defendant's seventy-fifth exception is to the refusal of the court to charge as follows:

"It was the duty of the insured, Arnold C. Messler, in the event of the occurrence of fire, to protect the property from further damage and to put the property in the best possible order, and, if it be found that the plaintiff did not do these things, the jury must return a verdict for the defendant."

The request was properly refused. As the court said in German-American Ins. Co. v. Brown, 75 Ark. at 259, 87 S. W. 138:

"The effect of such neglect on the part of the insured would only have been to prevent a recovery of so much of the property as could have been saved by the use of reasonable means at their command. The language of the policies on that subject is as follows: "This company shall not be liable for loss caused *** by neglect of the insured to use all reasonable means to save and preserve the property at and after the fire.' This language cannot be interpreted to mean that a negligent failure to use such means to save the property works a forfeiture of the entire policy. The instruction asked by appellants conveying that interpretation of the contract was therefore erroneous, and was properly refused."

In Gage v. Connecticut Fire Ins. Co., 34 Okl. 744, 127 Pac. 407, the court held that it was error for the trial court to direct a verdict for the defendant because of the insured's failure to protect the property, and used the following language:

"The defendant next urges in support of the court's ruling that the plaintiff violated the provision of the policy requiring him to protect the property from damages after loss; but it is manifest that failure to do so would not destroy his right of action entirely, but would only go to the amount of his recovery."

See, also, Wolters v. Western Assurance Co., 95 Wis. 265, 70 N. W. 62; Beavers v. Security Mutual Ins. Co., 76 Ark. 595, 90 S. W. 13, 6 Ann. Cas. 585; Knox-Burchard Mercantile Co. v. Hartford Fire Ins. Co., 129 Minn. 292, 152 N. W. 650; Sisk v. Citizens' Ins. Co., 16 Ind. App. 565, 45 N. E. 804. The latter case, cited by the defendant, does not support defendant's contention that

The

In the charge complained of the court was not considering the question of an appraisal as a condition precedent to the right to bring suit. That question had been properly and adequately considered in the charge. court was considering the question of delay on the part of the plaintiff before asking for a second appraisal. Whether the plaintiff had been sufficiently diligent in asking for a second appraisal was an issue in the case. The question whether a person has acted with reasonable diligence must be determined by a consideration of all the facts and circumstances connected with the particular case, and one of those facts in this case was the defendant's attitude and conduct. Both parties to the suit were parties to the contract of insurance. Speaking from the standpoint of duty, it is as much the duty of the defendant to attempt promptly to adjust the dispute on the question of the amount of loss as it is the duty of the plaintiff. In Johnson v. Insurance Co., 69 Mo. App. 231, the court said:

of the other; the calling for an arbitration was "Neither was compelled to await the action as much the privilege or duty of the one as

the other."

See Am. Ins. Co. v. Rodenhouse, 36 Okl. 211, 128 Pac. 502.

If an insured does not follow up his rights and seasonably demand an appraisal, but awaits until after the goods are sold or destroyed or until for some other reason an appraisal is impossible, it has been held that the demand was made too late, and that there could be no recovery on the policy. Morley v. Insurance Co., 85 Mich. 210, 48 N. W. 502. But these cases are not in point. Defendant's seventieth, seventy-eighth, eighty-second, and eighty-fourth exceptions

are overruled.

Exceptions 29, 30, 32, 33, 35, and 36 apply to the following questions by Mr. Waterman and answers by witness Matie C. Messler:

A.

"13 Q. Up to what time did negotiations between the insurance companies and you in regard to this loss continue? Mr. Moulton: I object to that. (Defendant's exception noted.) A. Do you mean the date? 14 Q. Yes. them for some time. 15 Q. Up to what time? Why, we were conferring back and forth with What was the final negotiations that you had with the insurance companies as to this loss?

(108 A.)

tion noted. Exception 29.) A. We went over [ Mr. Moulton: I want to have my objection to the insurance commissioner, and he said we noted to the compromise conversation that has had done everything that we could reasonably gone in. The Court: It should not have been be expected to do. The Court: Don't tell what stated, as has been remarked before. It isn't he said. 20 Q. Has any representative of any evidence." insurance company been to see you since that time? Mr Moulton: I object. (Defendant's exception noted. Exception 30.) A. That man that came to offer to settle with us for $8,000. 21 Q. When was that? Mr. Moulton: I object. The Court: The offer to settle may be struck You were asked for the date. A. I don't know what date that man came in. 22 Q. How long ago was it? Mr. Moulton: I object. (Defendant's exception noted. Exception 32.) A. It was after we put the matter in your hands, he came in and said- 23 Q. You can't tell what he said. A. Not what he said to me? 24 Q. No. What I want to get at is the date that he came; about how long ago? Mr. Moulton: I object. (Defendant's exception noted. Ex

ception 33.) A. I think it was three or four A. I think it was three or four years ago. The Court: Now you ought to identify that person as well as you can. 25 Q. Who was that person who came to see you? A. I do not recall the name, but I think I gave his card to you later. 26 Q. Well, do you remember which company he purported to represent? A. He purported to represent all the companies, and he said that this matter- Mr. Moulton: I object. The Court: You can't tell the conversations. Mr. Moulton: I also ask to have that struck out. If your honor please, may this witness be instructed to wait just a minute and give me a chance to object? The Witness: But Mr. Eddy told me that, and this man told me. Mr. Moulton: I think we are entitled to the ordinary courtesies in this case, and I ask that the witness be instructed not to answer until I get a chance to object. The Witness: How long will I wait? Mr. Moulton: There is a lot of hearsay evidence here. The Court: Go on, Mr. Waterman. 27 Q. Now, did you have any conference with Mr. Eddy about the matter at that time? A. Yes; I did have. Mr. Moulton: I object. The Court: You may answer. Exception. (Defendant's exception noted. Exception 35.) A. (continued). A conference; that is Mr. Eddy came in and talked with me frequently, and he felt very badly The Court: Well, you have answered. A. (continued). About the way the insurance people were treating the matter. 28 Q. Now I am referring to the time this man came over to see you; did you have any talk with Mr. Eddy at that time? Mr. Moulton: I object. (Defendant's exception noted. Exception 36.) Q. (continued). In regard to that person coming over to see you? A. Yes. Mr. Eddy said thatThe Court: You saw Mr. Eddy about it. Now, that is all you were asked. The Witness: Yes; I saw Mr. Eddy. Excuse me. Mr. Waterman: I want to connect up through Mr. Eddy as far as I could who that man was. The Court: Well, that is all right, but apparently she was going on to tell what Eddy and she said. A. (continued). He represented the insurance companies, and offered to settle with us for $8,000,

and I told him we couldn't settle for less than $11,200 and the interest, plus the interest; and I also told him-your honor, may I tell what I told him? The Court: You have gone way beyond the question that was asked you. Mr. Waterman told you he wanted you as far as you could to identify that person who called.

[6-8] Each of the questions objected to was clearly admissible. No one of these questions calls for an answer tending to prove an offer to compromise. Plaintiff's counsel was seeking to prove only that negotiations were conducted between the parties for a considerable time. Evidence that negotiations were bad between the insurance company and the insured concerning the loss is admissible upon the question as to whether the insurance company has waived the time limit for bringing suit, and also, as it tends to explain the delay in bringing suit, as bearing the plaintiff. See Bates v. German Commerupon the question of diligence on the part of cial Accident Co., 87 Vt. 128, 88 Atl. 532, Ann. Cas. 1916C, 447; Lynchburg Cotton Mill Co. v. Travelers' Insurance Co., 149 Fed. 954, 79 C. C. A. 464, 9 L. R. A. (N. S.) 654. The answers to the questions, so far as they recite the details of an offer by the insurance company to compromise, were clearly inadmissible and prejudicial. The court on its own motion ordered some of these answers stricken out. Apparently the court did not refuse to strike out any of the prejudicial answers. At least no exception is taken to such a refusal. It is evident from the record that the court tried as much as did defendant's counsel to prevent the witness from giving irrelevant and prejudicial answers.

The question being admissible, the defendant takes nothing by his objection to a question which is unobjectionable and his exception to an irrelevant and prejudicial answer. The defendant received no adverse ruling from the court concerning the irrelevant and prejudicial answers. Defendant does not complain that the court refused to strike out the improper answers or refused to properly instruct the jury concerning such answers. If the defendant considered, after the prejudicial answers had been given and stricken out, that the jury would be improperly influenced and the defendant prejudiced by reason of the improper answers, the defendant should have moved to take the case from the jury. Had such a motion been refused and the defendant's exception was before us, the defendant's contention as to prejudicial error would appeal very strongly to this court. See Demara v. Rhode Island Co., 42 R. I. - 107 Atl. 89. As this court said in Salter v. Rhode Island Co., 27 R. I. 27, 60 Atl. 588:

"To measure the effect of such misconduct upon the verdict in a case where the evidence for the plaintiff was not conclusive is beyond the power of the court."

The defendant relies upon Salter v. Rhode Island Co., supra, as an authority in this

"Providence, R. I., November 18, 1913. "The Williamsburgh City Fire Insurance Company, Brooklyn, New York: Inasmuch as you have not selected a competent and disinterested appraiser to act with a competent and disinterested appraiser selected by me, to determine the amount of loss under policy No. 3,297,701 and 3,297,898 in your company, there having been a disagreement as to the amount of loss under said policy, said loss resulting because of the damage and destruction of my property by a fire on or about the 21st day of June, 1912, and inasmuch as the appraiser selected by you

etc.

(108 A.)

appraiser selected by me, but being due solely [ After alleging that the defendant selected to the fault of your company and its representa- a competent and disinterested appraiser, the tive and the appraiser selected by your com- plaintiff should not have been permitted to pany, and inasmuch as the appraiser selected by your company has refused to act any further prove that his allegation was untrue for the in the premises and to attempt further to agree to the same count. See Hall v. Polack, 42 purpose of meeting one of defendant's pleas upon a competent and disinterested umpire, or to do any other act under the terms of said Cal. 218. Had the defendant directed the policy and the appraisal provided for therein," court's attention to this inconsistency and requested a charge to the effect that the letter was admitted in evidence for the purpose The reasonable inference to be drawn from of proving a demand for an appraisal and this language is that the defendant had se- that it could not be treated as evidence of inlected an incompetent and interested apprais-terestedness or incompetency on the part of er, that the defendant had improperly influ- Harden, the court doubtless would have enced the action of such appraiser, and that granted such a request and also the request the appraisal failed through fault of the de- which was refused. It would have been betfendant. But in the same count the plaintiff ter to have so framed the request that the alleges that "the said appraisers duly quali- mind of the court would have been drawn to fied to perform their duties and did not at the letter in question, as it would have been any time resign or surrender their positions clearly apparent that the plaintiff should not as such appraisers and are still duly quali- be permitted to disprove or deny his solemn fied appraisers of the loss and damage sus- allegations. The plaintiff does not contend tained by the plaintiff, and the said agree that he should have been permitted so to do. ment of appraisal is in all its parts in full He states in his brief: force and effect and has never been suspended, rescinded, canceled, or annulled," that the plaintiff has acted in good faith and with due diligence to obtain an award, and that no appraisal has been had. A portion of one of defendant's pleas to this count is as follows: "To wit, upon the 9th day of January A. D. 1913, the appraiser named by the plaintiff and the appraiser named by the defendant failed to agree upon an umpire, without fault on the part of the defendant, of which the plaintiff had knowledge. Yet the plaintiff did not diligently and seasonably demand a new appraisal or name a new appraiser or in any way seek a new appraisal, but then and there abandoned said arbitration and appraisal and made no further attempt or effort to have the amount of the loss alleged to have been sustained by him determined in the manner provided by the policy of insurance in said first count mentioned, but brought an action on said policy," etc.

"The question of Harden's competency was not submitted to the jury. It was not in issue. There was no testimony that showed that Harden was incompetent."

We think the letter in question introduced by the plaintiff for another and proper purpose did seriously attack the competency and disinterestedness of Harden.

[14] One of the issues in the case was whether the appraisal failed through fault of the defendant. The appraisal could have failed through fault of the defendant if it knowingly selected an incompetent and interested appraiser. Said letter, which was introduced in evidence by the plaintiff, assumes that defendant did not appoint a competent and disinterested appraiser (in other words, did appoint an incompetent and interested appraiser), and assumes that the failure to select an umpire (in other words, the failure

The plaintiff traversed a portion of the of the appraisal) was "due solely to the fault above plea as follows:

That the appraisers "did not fail to agree upon an umpire, nor did they fail to agree upon an umpire without fault on the part of the defendant, on the 9th day of January, A. D. 1913, or at any other time, nor did the said plaintiff then and there or at any time or place abandon said arbitration and appraisal," etc.

[12] From these pleadings it became an issue as to whether there was a failure of an appraisal through fault of the defendant.

[13] The plaintiff's said letter should have been limited to the purposes for which it was properly admitted. In Ireton v. Ireton, 59 Kan. at page 95, 52 Pac. 75, the court said: "A party may not render incompetent or irrelevant testimony competent merely by pleading it, nor does the failure of the opposing party to move to strike it out as irrelevant or redundant render it admissible."

of your company and its representative and the appraiser selected by your company," etc. In connection with said issue there would have been the issue whether Harden was a competent and disinterested appraiser had not the plaintiff barred this issue by alleging that "said defendant selected a competent and disinterested appraiser." While, as the plaintiff argues, Harden's competency was not in issue, yet the jury was not instructed that it was not in issue, and the jury was not instructed that the letter in question could not be considered as evidence of incompetency or interestedness on the part of Harden. What reason can be advanced for assuming that the jury, with the prejudicial letter before them, did not conclude that Harden's competency and interestedness was an issue in the case?

It is well established that a party is not bound by every statement and allegation in

MISSED WHENEVER LACK OF JURISDICTION
APPEARS.

It cannot be complained that motion to dismiss an appeal should have been denied, because not seasonably filed and because it did not point out specifically the grounds relied upon, where it appears that the order appealed from was not appealable; as it was the duty of the court to dismiss the cause at any stage when it discovered that it did not have jurisdiction, whether moved by a party or not.

his pleadings; but, inasmuch as the plaintiff | 2. APPEAL AND ERROR 792-APPEAL DIShad the opportunity of tendering an issue by pleading that the defendant did not select a competent and disinterested appraiser, but, on the contrary, well knowing that the appraiser selected by it was incompetent and interested (the plaintiff being ignorant of the facts), did select an incompetent and interested appraiser, and the appraisal failed through fault of the defendant in so selecting an incompetent and interested appraiser, and inasmuch as the allegation that the defendant selected a competent and disinterested appraiser must have been made advisedly as the letter in question, containing lan- Petition by Henry D. Fillmore, administraguage inconsistent with said allegation, was tor of the estate of Mason C. Morgan, derecited in the same count, we think the plain- ceased, to have the commission on the tiff must be deemed to have admitted that estate of William R. Morgan, deceased, reHarden was a competent and disinterested newed in order that a claim might be appraiser. Some liberality is allowed in presented. The commission having been repleadings particularly as regards inconsist-newed, and Fanny T. Morgan, administraent pleas, but a plaintiff is not permitted by blowing both hot and cold at the same time to maintain an action.

The defendant was entitled to have said request granted. It is apparent that the irrelevant portions, not only of said letter, but of other letters which were before the jury, were highly prejudicial to the defendant. Such testimony is likely not only to have weight, but to be regarded by the jury as decisive of the plaintiff's right to maintain his action. Defendant's seventy-fourth exception is sustained.

As a new trial must be granted, the court does not deem it necessary or proper to consider at this time whether the verdict is against the evidence or whether the damages

are excessive.

All of defendant's other exceptions are overruled, and the case is remitted to the superior court for a new trial. STEARNS, J., dissents.

On Motions for Reargument. After the opinion of this court was filed, on January 31, 1920, the plaintiff and the defendant each filed a motion for reargument. Neither of these motions suggests any matter which was not fully considered and passed upon by the court before delivering its opinion. Each motion is denied and dismissed by a majority of the court.

(93 Vt. 491)

FILLMORE v. MORGAN'S ESTATE. (No. 177.)

(Supreme Court of Vermont. Bennington. Dec. 27, 1919.)

1. COURTS 202(5)-ORDER RENEWING COMMISSION IN PROBATE COURT NOT APPEAL

ABLE.

No appeal lies under G. L. 3455, from an order renewing a commission in probate court on petition filed in accordance with the provisions of P. S. 2821, as amended by Acts 1908,

Exceptions from Bennington County Court: Fred M. Butler, Judge.

trix of the estate of William R. Morgan, hav-
ing appealed, and her appeal having been dis-
missed by the county court, said Fanny T.
Morgan excepts. Affirmed.

ERS, TAYLOR, MILES, and SLACK, JJ.
Argued before WATSON, C. J., and POW-

Holden & Healy and Batchelder & Bates, all of Bennington, for appellant.

W. B. Sheldon, of Bennington, for appellee.

SLACK, J. The appellee, as administra tor of the estate of Mason C. Morgan, filed a petition in the probate court for the district of Bennington, wherein the estate of William R. Morgan was then in the process of settlement for the purpose of having the commission thereon renewed, in accordance with the provisions of P. S. 2821, as amended by Acts 1908, No. 72, so that he might present a claim for the estate of Mason C. "Upon hearing,' to quote from the appellant's brief, that court, by its order dated September 10, 1915, renewed the commission as prayed for by the appellee. From this order the appellant appealed to the Bennington county court. Her appeal was entered October 20, 1915. On January 26, 1916, the appellee filed a motion to dismiss the appeal "upon the grounds and for the reasons apparent upon the face of the record." The motion was granted and the appeal dismissed, to which the appellant excepted.

The only question for consideration is whether the court erred in dismissing the appeal.

[1] The order from which the appeal was taken was an interlocutory one from which no appeal lies. Timothy v. Farr, 42 Vt. 43; Leach v. Leach, 51 Vt. 440; Felton v. Sowles, 57 Vt. 382; Wilcox v. Wilcox, 63 Vt. 137. The appellant's contention that the addition of the words, "except as otherwise provided," to G. L. c. 48, § 30, in force when Timothy v. Farr was decided, P. S. 2973 (G. L. 3455), enlarged the scope of this statute so that now