While plaintiff's petition for rehearing must be and is denied, it has been the occasion for a careful reconsideration of the case by the court in view of the "practical difficulty" in which appellant is placed. There is a general verdict for defendants. The effect, without more, will be to bar plaintiff of any recovery even for the *Page 319 defendants' share of an admitted loss of $15,000. It is a difficulty for plaintiff and a serious one, but not of our making.
Plaintiff declared very definitely for recovery on the award. There was neither prayer nor proof for recovery, independently of the award, for loss actually suffered. No special questions having been submitted to the jury, it is impossible to say whether the general verdict rests upon invalidation of the award, or a finding that plaintiff had attempted to defraud defendants, or upon both grounds.
The one point decided here is that the award is invalid as a matter of law. Upon that point our reconsideration of the evidence, particularly that referred to in the petition for rehearing, but confirms the conclusion that the controlling issue was not considered at all by the umpire. Plainly, therefore, the award was not responsive to the issues submitted. That question cannot be reopened.
The record leaves in some doubt the intention with which the issues were submitted below. The jury was told that "it is only in the event that the award is set aside on the grounds charged in the answers that the plaintiff cannot recover in this case;" and again, with some apparent conflict, "If you should find by the greater weight of the evidence, `that the plaintiff attempted to defraud these defendants,' your verdict would be for the defendant." So the jury may have felt that the award itself was proper but the plaintiff could not recover at all because of fraud in the sworn statement of loss; or they might have concluded that the plaintiff was guiltless of fraud but that notwithstanding the award could not stand. There was no effort by plaintiff to prove loss other than by the award and none to protect its right, if any, to recover for the admitted loss in the event that the award should be set aside but plaintiff found innocent of fraud. In that situation and with this further comment, we consider it proper to say our decision of the appeal is without prejudice to the rights of either party in the event that plaintiff renews its motion for a new trial (with or without amendment of pleadings) of the issues other than that of the validity of the award.
Petition for rehearing denied. *Page 320