Globe &. Rutgers Fire Ins. Co v. Jewell-loudermilk Co, (No. 17118.)

• Decision Date: 03 March 1927
• Docket Number: (No. 17118.)
• Parties: GLOBE &. RUTGERS FIRE INS. CO. v. JEWELL-LOUDERMILK CO.
• Court: Georgia Court of Appeals

36 Ga.App. 538

137 S.E. 286

GLOBE &. RUTGERS FIRE INS. CO.

v.JEWELL-LOUDERMILK CO.

(No. 17118.)

Court of Appeals of Georgia,

Division No. 2.

March 3, 1927.

(Syllabus by Editorial Staff.)

Error from Superior Court, Hall County; J. B. Jones, Judge.

Action by the Jewell-Loudermilk Company against the Globe & Rutgers Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed with direction.

Smith, Hammond & Smith, of Atlanta, and Dean & Wright, of Gainesville, for plaintiff in error.

A. C. Wheeler, of Gainesville, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1] 1. Whether or not, where a policy of fire insurance provides that, upon the demand of either party, appraisers shall be selected and the amount of loss ascertained by appraisement, and that no suit or action on the policy shall be sustainable in any court "unless the assured shall have fully complied with all the foregoing requirements, " an actual appraisement is a condition precedent to the Insured's right to recover for a loss under the policy, the insured performs all of his obligations as respects an appraisement, as provided in the policy, when he in good faith agrees to the selection of appraisers and submits the matter to appraisement as provided in the policy, and where the appraisers, through no fault of the insured, fail to agree, the insured has complied with all of his obligations under the policy, and the insured may, in the absence of a further demand by the insurer for an appraisement, proceed forthwith to institute suit upon the policy and establish the amount of his loss by the evidence before the jury. 14 R. C. L. 1361, § 532; Jerrils v. German American Ins. Co., 82 Kan. 320, 108 P. 114, 28 L. R. A. (N. S.) 104, 20 Ann. Cas. 251. This case is distinguishable from that of Insurance Co. of North America v. Folds, 35 Ga. App. 720, 135 S. E. 107, because in that case the plaintiff, who was the insured, undertook, under the terms of the contract, and in accordance with an agreement for an appraisement, signed by both parties, to fix and determine the amount of the loss by an appraisement, and, after the award made thereunder had been held invalid by reason of the illegal appointment of the umpire, who was appointed by the judge of the superior court at the instance of the plaintiff, the plaintiff brought suit upon the policy without ever having completed the appraisement which he had undertaken to obtain.

2. A threat made by an attorney for the insured and communicated to one of the appraisers, that, if the appraiser made an award in a certain amount, the attorney would take legal proceedings against the appraiser, where, from the evidence, it does not appear that this appraiser failed to agree by reason of such threat, is insufficient to au thorize the inference that the act of the attorney in any way brought about the failure of the appraisers to agree.

3. Under the foregoing rulings, the court did not err in directing a verdict against the defendant on the plea in abatement, in which it contended that the suit...