Billmyer v. Hamburg-Bremen Fire Ins. Co.

• Decision Date: 24 January 1905
• Citation: 49 S.E. 901,57 W.Va. 42
• Parties: BILLMYER v. HAMBURG-BREMEN FIRE INS. CO.
• Court: West Virginia Supreme Court

49 S.E. 901

57 W.Va. 42

BILLMYER v. HAMBURG-BREMEN FIRE INS. CO.

Supreme Court of Appeals of West Virginia.

January 24, 1905

Submitted September 12, 1904.

Syllabus by the Court.

1. An award under an insurance policy--the submission limited to the amount of loss by fire--does not prevent action on the policy.

2. No specification having been filed in the trial court of the defense that the policy of insurance was forfeited by the assignment of the right of the assured, that defense cannot avail on writ of error.

3. A fire insurance policy provides for notice of loss, and proof of loss and arbitration, and contains the independent provision that "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." A preliminary proof of loss having been furnished, this clause does not require another after an award upon the amount of loss.

4. An insurance policy provides, in case of disagreement as to amount of loss to goods by fire, for arbitration as to such amount, as a condition precedent to suit on it, and provides that the award shall "determine the amount of such loss." A valid award under it is final and conclusive as to the amount of loss.

5. Awards--effect of.

6. An award under a submission in the country--not a statutory award--cannot be impeached at law by evidence of misconduct of the arbitrators in becoming intoxicated while performing their duties, or other cause not apparent on the face of the award.

7. An award has the same effect whether the submission is by writing under seal or not under seal. It may be not so if award is to pass title to land.

Error to Circuit Court, Jefferson County; E. Boyd Faulkner, Judge.

Action by J. D. Billmyer against the Hamburg-Bremen Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

R. T Barton and Forrest W. Brown, for plaintiff in error.

Geo. M Beltzhoover and D. C. Westenhaver, for defendant in error.

BRANNON J.

Action on a policy of insurance by J. D. Billmyer against the Hamburg-Bremen Fire Insurance Company for loss by fire to a stock of store goods, in which the court gave judgment for the plaintiff for $873.30 upon a demurrer to the evidence filed by defendant.

A primary question is whether this action, which is based on the policy, can be maintained; the defendant contending that the action cannot be on the policy, but must be on an award made in the case. The policy provides: "In the event of disagreement as to the amount of loss the same shall, as above provided, 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 policy also provides: "No suit or action on this policy, for the recovery of any claim, shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements." The declaration goes only on the policy, not on the award. "It is a general rule that a valid award operates to merge and extinguish all claims embraced in the submission. Thereafter the submission and award furnish the only basis by which the rights of the parties can be determined, and constitute a bar to any action on the original demand; and the defendant cannot, in an action to enforce the award, set up in defense thereto any matters embraced in the award." Such is the force of an award upon all matters in controversy in a given transaction, but in this instance the submission was limited to the arbitration of only one matter under the contract of the policy; that is, the amount of the loss by fire. It did not include or close other points of controversy under the contract, but only provided a process of settling one matter--the ascertainment of one element of settlement. We find in 3 Cyc. 585, the following: "Where the whole matter of dispute is referred to quasi judicial determination, the original cause of action is merged by the judgment; but a mere appraisement, valuation, or the like act, does not destroy the original cause of action. At most, it affects the evidence rather than the remedy." "Technically, to constitute a valid common-law award, it is necessary that there should be a submission by the parties of an existing matter of difference, for the purpose of terminating or concluding the parties as to the entire subject-matter in issue between them, as distinguished from a submission for the ascertainment of a single fact or the settlement of a particular question in the chain of evidence constituting a mere appraisement, valuation, or reference not designed to terminate the whole controversy between the parties, which proceeding is said not to be an arbitration." Though the finding on such one matter has the attribute of finality of an award, yet it does not cover all the rights under the contract, does not drown or merge the whole contract, and therefore does not forbid action on it, but only gives evidence in that action as to that one matter. Judge Tucker expresses this view in Bierly v. Williams, 5 Leigh, 700, 703. And there are several instances where the matter of measurement or estimate of work done for pay under a contract was submitted to a person, making his finding final; but it was not supposed to merge the contract, so as to limit action to the award, as, in its nature, it is only an item of evidence in adjudicating the rights of the parties in an action on the contract. Condon v. South Side, 14 Grat. 302; N. & W. R. Co. v. Mills, 91 Va. 613, 22 S.E. 556; Railroad Co. v. March, 114 U.S. 549, 5 S.Ct. 1035, 29 L.Ed. 255. We conclude that the action was properly brought on the policy, and the award evidence in it. It adds much to the force of this holding to note that the words above quoted of the clause of the policy itself look to a suit on the policy after the award.

The next question comes up on the defendant's claim that the policy was assigned to other parties by Billmyer in violation of its conditions forfeiting it for that cause, and barring the action for that cause. It is enough to say that this defense is first made in this court. No statement of the breach of that clause was filed in the circuit court, as demanded by Code 1899, c. 125, § 64, and it is not involved in the case in this court. Rosenthal v. Ins. Co., 46 S.E. 1021, 55 W.Va. 238. Moreover, the assignment, being after loss, is valid. Nease v. Ins. Co., 32 W.Va. 283, 9 S.E. 233.

We take up next the defense that Billmyer failed to furnish proof of loss. He did furnish a proof of loss. It is said to be defective in being too general. The policy called for a statement giving "the cash value of each item thereof and the amount of loss thereon," whereas this statement specified "men's overcoats," "suits," "coats," and other items; giving not even the number of the articles; not giving each item or classes, with their separate values and losses, but total values and losses of classes of goods. The company returned this proof to Billmyer, simply saying that it was not "in proper form," but not specifying defects. The law requires that defects in a proof of loss shall be specified; else it avails nothing. May on Ins. § 469b. But the court has come to the conclusion that the proof of loss is substantially good, as it gives the different classes of goods, and gives value and loss to each class. It also states that it is "a summary of detailed inventory duly certified as correct and true, now in the possession of Billmyer open to inspection and verification, or copy by said insurance company." Now concede that Billmyer should have furnished that list or a copy; yet he informed the company that it was in the town, open to inspection, or that a copy could be had. The agent in the town did not ask for it; did not say the proof was defective for want of it. Justice would say that he should have called for it, if the proof was not sufficient in itemization. It was so easy to do this. The inventory was right at...