American Cent. Ins. Co. v. Bass

• Decision Date: 04 February 1897
• Parties: AMERICAN CENT. INS. CO. v. BASS et al.
• Court: Texas Supreme Court

Page 1119

38 S.W. 1119

AMERICAN CENT. INS. CO. v. BASS et al.

Supreme Court of Texas.

February 4, 1897.

Certified question from court of civil appeals of Second supreme judicial district.

Action by Bass Bros. against the American Central Insurance Company. From a judgment for plaintiffs, defendant appealed to the court of civil appeals, which certifies questions to the supreme court.

Harris & Knight, for appellant. Cockrell & Hardwicke, for appellees.

GAINES, C. J.

In this case the court of civil appeals for the Second supreme judicial district have certified for our decision the following question: "Under a fire insurance policy which provided that the amount of the loss should be ascertained by appraisement, in accordance with the usual stipulations in such policies, the amount of the loss resulting to appellees in this case from the burning of their stock of goods covered by said policy was so ascertained, but appellant refused to pay same, upon the ground that it was not liable for any amount; and, in bringing the suit, appellees sought to recover, and did recover, a greater amount than had been so ascertained, the appellant pleading the appraisement or award as conclusive upon the amount of the loss, but also denying any liability under the policy. No such denial, however, had been made before the appraisement. The policy contained a provision to the effect that any proceeding relating to the appraisement would not waive any of the conditions of the policy, the ground upon which liability was denied being a breach of one of these conditions. The material question which we deem it proper to certify to your honors for decision is: Did the denial of liability on the part of appellant after the amount of the loss had been ascertained by appraisement, as provided in the policy, have the effect of waiving its right to insist upon the appraisement as conclusive of the amount of the loss; such appraisement being otherwise valid, if not thus waived?"

It is settled law, at least in this jurisdiction, that a stipulation in an insurance policy, by which it is agreed that the amount of the loss shall be determined by an appraisement, is valid, and that, if such appraisement be made a condition precedent to the bringing of a suit upon the policy, it will be enforced. Insurance Co. v. Clancy, 83 Tex. 113, 18 S. W. 439; Id., 71 Tex. 5, 8 S. W. 630. It was held in the case cited that the attempt to adjust the amount of the loss by agreement was not a...