(dissenting). I agree with the majority that the arbitration clause purports to make the arbitration contingent (but not necessarily a limitation) upon a “disagreement between any person making claim hereunder (Murtaugh) and the company as to either (1) the legal liability of the owner or operator of the uninsured automobile or (2) the amount of payment for damages owed by such owner or operator.”
At the trial upon the petition to confirm the arbitration award the defendant contended that it had admitted the legal liability of the uninsured motorist and the extent of money damages owed by such motorist. But, notwithstanding this concession at the trial, prior to the submission of the matter to arbitration the defendant had refused to settle or otherwise *271pay the amount claimed to be due plaintiff. After negotiation with the plaintiff comprising offers and counter offers for settlement, the defendant finally refused to pay any amount on the ground that under the “other insurance” clause of its policy it was bound only to pay the amount by which its insurance exceeded the sum of the total limits of all other similar insurance available to its named insured.
It is conceded that arbitration clauses are of two classes, (1) unlimited, and (2) limited clauses providing for the arbitration of specific types of disputes arising out of contract. Nevertheless, the very purpose of the arbitration clause was to settle and finally determine any disagreement between the parties with respect to the liability of the owner of the uninsured automobile and the amount of damages for which he was liable. It thus contemplated determination of the amount for which the defendant was liable to the plaintiff.
The underlying basis for the submission of a dispute to arbitrators is to obviate the necessity of determination of a controversy or dispute by judicial proceedings. And it is the policy of the law to favor and encourage arbitration, and every reasonable intendment will be indulged to give effect to such proceedings and to favor the regularity and integrity of the arbitrator’s acts. Brennan v. Brennan, 164 Ohio St., 29, 128 N. E. (2d) 89; Campbell v. Automatic Products Co., 162 Ohio St., 321, 329, 123 N. E. (2d), 401.
And when a dispute is submitted to arbitrators, the parties thereby consent to a determination of the facts as well as the law. As stated by the Supreme Court in the Brennan case, as far back as 1835 the court in Ormsby’s Admrs. v. Bakewell & Johnson, 7 Ohio 99, held that, where arbitrators are substituted by parties, the award of the arbitrators is final and cannot be impeached for error; and that nothing but fraud in the parties or the arbitrators can be alleged to avoid the award. “Arbitrators are constituted, by the parties, chancellors, judges and jurors, and have jurisdiction of the law and the facts.” Ormsby’s v. Bakewell, supra; Springfield v. Walker, 42 Ohio St., 543. See also Corrigan v. Rockefeller, 67 Ohio St., 354, 66 N. E., 95, and Dressler v. Kiewit Sons Co., 102 Ohio App., 503, 144 N. E. (2d), 269. These authorities relate to general or unlimited arbitration proceedings, but the principle that the arbitrators *272have jurisdiction, to determine the law as well as the facts should likewise apply to a so-called limited arbitration. Otherwise no final and binding award could be made.
Conceding that the arbitration was limited to a determination of the two items, nevertheless, incident to a determination thereof toward making the award contemplated by the arbitration clause, it was necessary for the arbitrators to consider other provisions of the policy which might affect the award, such as for example the “other insurance” clause and the limitation contained therein.
Although afforded ample opportunity to do so, the defendant refused to participate in the arbitration proceedings. Defendant was content merely to address a letter to the arbitrators advising that the question attempted to be arbitrated was not one for which its policy provided arbitration procedure and for that reason refused to participate in any attempt to arbitrate the dispute. The letter further stated that the dispute had to do with the policy construction concerning the effect of the “other insurance” provision of its policy, and that arbitration under its policy was only allowed when it involved a question of the legal liability or the amount of payment of damages. The contention or objection asserted in this letter merely raised a question of law for consideration and determination by the arbitrators incident to their determination of the question submitted. In rejecting this contention or overruling defendant’s objection the arbitrators may have erred as a matter of law. A court or another panel of arbitrators might well have decided otherwise in construing the terms of the policy. But, inasmuch as the determination of the question submitted involved a decision on questions of law (including the construction of the terms of the policy), as well as those of fact, the defendant is bound by the award and may not assert the claimed error in a proceeding to confirm the award.
The writer is not unaware of the statement of Zimmerman, J., in the Campbell case, which is obiter, that the defendant therein might have brought an action to rescind the contract on the ground of illegality or it could have refused to arbitrate under the contract thus forcing the plaintiff to call upon the courts under the arbitration statutes to compel the defendant to submit the controversy to arbitration. Plaintiff in the in*273stant case elected to proceed with the arbitration and the arbitrators proceeded to make the award notwithstanding the objection of the defendant. Instead of bringing an action for declaratory judgment or one to restrain the plaintiff and the arbitrators from proceeding to make their award, defendant merely objected to the proceeding upon the claimed jurisdictional ground.
Section 2711.09, Revised Code, provides that the court shall grant such an order confirming an award unless the award is vacated, modified, or corrected as prescribed by Sections 2711.10 and 2711.11, Revised Code. Upon the record presented upon this appeal it is not shown that the arbitrators or the parties were guilty of bad faith or fraud or that the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
The writer, therefore, respectfully dissents and is of the opinion that the judgment of the Common Pleas Court should be affirmed.