76 S.W. 22 (Ky.App. 1903), Continental Ins. Co. v. Vallandingham & Gentry

Citation:76 S.W. 22, 116 Ky. 287
Opinion Judge:O'REAR, J.
Attorney:Chas. Strother, John S. Gaunt, Frank C. Green, and Bargen & Hicks, for appellants. Lindsay & Botts and W. S. Pryor, for appellees.
Case Date:September 25, 1903
Court:Court of Appeals of Kentucky

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76 S.W. 22 (Ky.App. 1903)

116 Ky. 287




Court of Appeals of Kentucky.

September 25, 1903

Appeal from Circuit Court, Owen County.

"To be officially reported."

Action by Vallandingham & Gentry against the Continental Insurance Company and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Chas. Strother, John S. Gaunt, Frank C. Green, and Bargen & Hicks, for appellants.

Lindsay & Botts and W. S. Pryor, for appellees.


Appellees effected an insurance for $6,000 with appellants, six fire insurance companies, upon a stock of general merchandise at Wheatley, Ky. By the reason of the burning of an adjacent building, threatening the one containing the insured goods, appellees removed the goods into the street and to a nearby lot. In the excitement, hurry, and reckless manner of handling by the crowd the goods were badly damaged by being soiled and otherwise abused. These suits are to recover the amount of the damage, laid, at $4,000. The principal defense is that the insured failed and refused to submit the amount of their loss or damage to arbitration or appraisement, as required by the policies. All the policies are alike in this particular. Their form is what is known as the "New York Standard Policy." The clause in question is as follows: "This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or if they differ, then by appraisers as hereinafter provided, and the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. *** In the event of disagreement as to the amount of the loss the same shall, as above provided,

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be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser selected by them and shall bear equally the expenses of the appraisal and umpire. *** And the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required. *** No suit or action on this policy for the recovery of any claim shall be sustained in any...

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