(dissenting).
One ground upon which recovery by appellant was denied is that the failure to appraise the loss was attributable to the insured because of his appointment of an alleged “interested” appraiser. In reaching that conclusion the majority stated that “on a showing of the absence of such a fair effort [to obtain arbitration] on the part of the insured, the insured-could not recover.” (C.C.A.) 91 F.(2d) 735, 737. An early case, Old Saucelito L. & D. Co. v. Commercial U. A. Co., 66 Cal. 253, 5 P. 232, was relied upon to sustain that doctrine.
After that decision the statute requiring the provisions in the policies in question regarding appraisement was passed, and that statutory provision was interpreted in Koyer v. Detroit Fire & Marine Ins. Co. (Cal.Sup.) 70 P.(2d) 927, decided since the opinion herein.
The gist of that case, in so far as it is applicable here, lies in the announcement of the doctrine that an award by arbitrators under the terms of the policy was not a condition precedent to plaintiff’s right to sue on the policies.
In arriving at this conclusion the California court held that the question of good or bad faith of the insured was not material, that the real question was, “Is the insured responsible for acts which caused the arbitration to fail?” If so, said that court, he was foreclosed of a right to sue even though he acted in good faith and without intent to defeat the arbitration.
Applied to the facts in the case before us, I think Koyer v. Detroit Fire, etc., Co., supra, is far from confirmation of this court’s interpretation of the policy provisions in the instant case.
The dissenting opinion herein held that recovery should not be denied on this ground because no such defense was pleaded, or intended. Appellees in their briefs disclaimed any knowledge of the facts showing the alleged “interest.” The majority said (C.C.A.) 91 F.(2d) 735, 739: “The insurance companies would have no reason to suspect that one in such a position would be a person capable of the frauds committed with Hyland. They were not exposed until Colbert’s confession of them in the course of the trial below.”
If appellees had no knowledge of the alleged “frauds” it is difficult to understand how they could have intended to plead such a defense. The statement of the majority above quoted shows, I think, that the allegation of appellees charging that the appraisement was prevented by appellant and his appraiser is nothing more than a “catch-all” conclusion, which asserts no defense.
The petition should be granted.