38 S.E. 679 (W.Va. 1901), Providence Washington Ins. Co. v. Board of Ed. of Morgantown School Dist.

Citation:38 S.E. 679, 49 W.Va. 360
Opinion Judge:McWHORTER, J.
Party Name:PROVIDENCE WASHINGTON INS. CO. et al. v. BOARD OF EDUCATION OF MORGANTOWN SCHOOL DIST.
Attorney:Caldwell & Caldwell and Okey Johnson, for appellants. George C. Sturgiss, Cox & Baker, and Lazelle & Stewart, for appellee.
Case Date:March 25, 1901
Court:Supreme Court of Appeals of West Virginia

Page 679

38 S.E. 679 (W.Va. 1901)

49 W.Va. 360

PROVIDENCE WASHINGTON INS. CO. et al.

v.

BOARD OF EDUCATION OF MORGANTOWN SCHOOL DIST.

Supreme Court of Appeals of West Virginia.

March 25, 1901

Syllabus by the Court.

1. When parties have made a written agreement, the writing is regarded as the exclusive evidence of the contract, and all oral negotiations and stipulations preceding or accompanying the execution of the written agreement are merged in it, and are not admissible in evidence. See, also, Long v. Perine, 23 S.E. 611, 41 W.Va. 314 (Syl., point 1).

2. In case of loss by fire under a policy containing a provision allowing the insurer to repair, rebuild, or replace the injured building, and containing also a provision that the loss or damage should in no event exceed what it would then cost the insurer to repair or replace the same with material of like kind and quality, if the insurer should waive the right to repair or rebuild, and agree to pay the amount of loss and damages in cash, that fact would not change the basis of estimating the loss and damages, and the same should be ascertained precisely in the same manner as if it were the purpose to repair, rebuild, or replace the structure.

3. There is no total loss of a building, requiring payment in full amount of the policy of insurance, if the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury.

4. Whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such basis.

5. When an umpire or arbitrator exceeds his authority, the effect of his act is the same, whether it was done consciously or by mistake, as in either case his award is void.

6. Syl., points 1, 5, 6, Wheeling Gas Co. v. City of Wheeling, 5 W. Va. 448, approved.

[49 W.Va. 361]Appeal from Circuit Court, Monongalia county; J. M. Hagans, Judge.

Action by the Providence Washington Insurance Company and others against the board of education of the Morgantown school district. Judgment for defendant. Plaintiffs appeal. Reversed.

Page 680

Caldwell & Caldwell and Okey Johnson, for appellants.

George C. Sturgiss, Cox & Baker, and Lazelle & Stewart, for appellee.

McWHORTER, J.

The board of education of the Morgantown school district procured from Providence Washington Insurance Company insurance in the amount of $4,000 on its two-story, tin-roofed public-school building, on the east side of Spence street, in Morgantown, W. Va., against loss or damage by fire, by policy dated December 24, 1894, to run three years from that date; and at the same time said board of education procured insurance on same building from Fireman's Fund Insurance Company of San Francisco, Cal., by policy of same date in the sum of $3,300, and $700 on the school furniture and fixtures in said building, which insurance was also for three years from said 24th day of December, 1895. On the 11th day of January, 1897, a fire occurred in said building, burning the roof and attic. On the 19th day of January, 1897, the said insurance companies, by D. G. Morgan, their agent, entered into an agreement, in writing, bearing date on that day, with said board of education, which agreement, omitting the signatures, and also showing the oaths of the appraisers, and the selection and oath of the third appraiser, omitting the jurat in each case, and the award of the appraisers, are as follows:

"Agreement for Submission to Appraisers. This agreement, made and entered into by and between the board of education of Morgantown independent district, of the first part, and the insurance company or companies whose name or names are signed hereto, of the second part, witnesseth: That C. W. Huston, of Morgantown, West Virginia, and Cha[49 W.Va. 362]rles L. Hickman, of Clarksburg, West Virginia, shall appraise and estimate the loss upon the property damaged and destroyed by the fire of January 11, 1897, as specified below: provided, that in case of disagreement the said appraisers shall select a third, who shall act with them in matters of difference only. The award of said appraisers, or any two of them, made in writing, in accordance with this agreement, shall be binding upon both parties to this agreement. It is expressly understood that this agreement and appraisement is for the purpose of ascertaining and fixing the amount of said loss and damage, only, to the property herein after described, and shall not determine, waive, or invalidate any other right or rights of either party to this agreement. The property on which the loss or damage is to be determined is as follows, to wit: As per description hereto attached. The board of education of Morgantown independent district. On their two-story brick, metal-roof public-school building, situate at the head and on the north side of Walnut street, in Morgantown, West Virginia. On the school furniture and fixtures contained in the above-described building. (Damaged property must be arranged for appraisal.) And it is furthermore expressly understood and agreed that the assured must at once place the damaged property in as good condition as possible, assorting and arranging the same according to their kinds, separating the damaged from the undamaged, and fill out the schedule blank with a list of the articles upon which damage is claimed, showing the kind and quality of each, so that the appraisers may perform their duty with greater facility. The appraisers shall then determine the actual cash value of each article, and place the damage on each at a definite sum per yard, pound, bushel, or gallon, etc., as the case may require, in their proper counts. Articles without apparent or known damage are to be considered uninjured, and not to be included in this schedule; and, if any such are entered herein, the appraisers will mark them, 'Not damaged.' Goods damaged by removal must be specified separately."

"Declaration of Appraisers. State of West Virginia, County of Monongalia--ss.: We, the undersigned, do solemnly swear that we will act with [49 W.Va. 363]strict impartiality in making an appraisement and estimate of the loss and damage upon the property herein before mentioned, in accordance with the foregoing appointment, and that we will make a true, just, and conscientious award of the same, according to the best of our knowledge, skill, and judgment. We are not related to the assured, either as creditors or otherwise, and not interested in said property or the insurance thereon. C. L. Hickman, C. W. Huston, Appraisers."

"Selection of Third Appraiser. We, the undersigned, hereby select and appoint E. W. Field, of Smithfield, Pennsylvania, to act as the third appraiser to settle matters of difference that exist between us by reason of, and in compliance with, the foregoing agreement and appointment. Witness our hands this 6th day of February, 1897. C. L. Hickman. C. W. Huston."

"Qualification of Third Appraiser. State of West Virginia, County of Monongalia--ss.: 1, the undersigned, hereby accept the appointment of third appraiser, as provided in the foregoing agreement, and solemnly swear that I will act with strict impartiality in all matters of difference that shall be submitted to me in connection with this appointment, and I will make a true, just, and conscientious award, according to the best of my knowledge, skill, and judgment. I am not related to any of the parties of this agreement, nor interested, as a creditor or otherwise,

Page 681

in said property or insurance. [Signed] E. W. Field."

"Award of Appraisers. To the parties in Interest: We have carefully examined the premises and remains of the property hereinbefore specified, in accordance with the foregoing appointment, and have determined the loss and damage on building to be six thousand three hundred and [49 W.Va. 364] thirty-four 65/100 (6,334.65) dollars; the loss and damage on furniture and fixtures to be one hundred and seventy-five dollars ($175.00). Witness our hands this 4th day of March, 1897. C. W. Huston, E. W. Field, Appraisers.

"C. L. Hickman, one of the appraisers, does refuse to concur in the above report, for the reason that it does not comply with the duties set forth above, nor to the terms of the policy. C. L. Hickman."

The said insurance companies filed their bill in the circuit court of Monongalia county against the said board of education, praying it be made a party defendant to the bill, and required to answer the same, and that said board, as a corporation, its agents, attorneys at law, and all others, be enjoined and restrained from bringing or prosecuting any suit in any court of this state for the recovery of the amount of said pretended award mentioned and described in the bill and exhibits; that proper process issue; that all proper orders be made and entered, and accounts directed and taken; that said pretended award be set aside and declared to be null and void; that the cause be referred to a commissioner of the court, with directions to ascertain and report the amount of loss sustained by the defendant in same upon the basis fixed by, and according to the terms and conditions of, the policies of insurance; and for general relief. The injunction was accordingly granted. The policies are filed as exhibits with the bill. The policy of the Providence Washington Insurance Company agrees to make good unto the said assured "all such immediate loss or damage, not exceeding in amount the sum insured, nor the interest of the assured in the property, except as herein provided, as shall happen by fire to the property above specified from the 24th day of December, one thousand eight hundred and ninety-five, at noon, to the twenty-fourth day...

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