Boston Ins. Co. v. Kirby
| Decision Date | 18 February 1926 |
| Docket Number | (No. 107.) |
| Citation | 281 S.W. 275 |
| Parties | BOSTON INS. CO. et al. v. KIRBY. |
| Court | Texas Court of Appeals |
Action by A. H. Kirby against the Boston Insurance Company and another. From a judgment in favor of plaintiff, defendants bring error. Judgment affirmed.
Thompson, Knight, Baker & Harris, of Dallas, for plaintiffs in error.
Kirby, King & Overshiner, of Abilene, and Mack & Mack, and H. K. Welch, all of Fort Worth, for defendant in error.
The appellee filed petition complaining of the Boston Insurance Company and of the Milwaukee Mechanics' Insurance Company, alleging as against each of said companies that he owned a dwelling house in Abilene, Tex., and that on January 23, 1924, while the policies were in force, the said house was damaged and injured by fire to the extent of $9,550; that the house was worth $10,000; and that plaintiff performed all the conditions of the policies of the respective companies. The damage claimed against the Milwaukee Mechanics' Insurance Company was $3,000, and against the Boston Insurance Company a like sum. Each of the defendants answered by plea in abatement, alleging that the plaintiff failed to agree with appellants as to the amount of the loss, whereupon it in good faith made written demand for appraisal as provided in the policy, which demand was refused by appellee. Appellants further answered subject to plea in abatement that they should neither be held liable for more than its pro rata portion of the loss, and alleged that plaintiff held $10,000 insurance, and in the event of liability, the liability of appellants should be no more than the provisions of the policy, and appellants further answered by general denial. The cause was submitted to a jury, and following the answers of the jury, the court entered judgment in favor of appellee, and this cause is now before this court by writ of error.
Propositions 1, 2, and 3 bearing on same matter will be treated together, and are as follows:
First. The provision of the policy relative to the fixing of the loss by appraisal is reasonable, valid, and enforceable.
Second. The plaintiff is not entitled to maintain his suit because of his refusal to accede to the demand of the defendants for an appraisal.
Third. The demand for appraisal having been made before anything was due under the policies, the same had to be acceded to and an award returned, before plaintiff could maintain a suit on the policies.
Each of the policies contained the following provisions:
The policy further provides:
"And the loss shall not become payable until sixty days after the 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."
The policy further provides:
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