Carp v. Queen Ins. Co.

• Decision Date: 16 February 1904
• Citation: 79 S.W. 757,104 Mo. App. 502
• Parties: CARP v. QUEEN INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

79 S.W. 757

104 Mo. App. 502

CARP v. QUEEN INS. CO. OF AMERICA.

St. Louis Court of Appeals. Missouri.

February 16, 1904.

INSURANCE—APPRAISAL—WAIVER—EFFECT OF PLEADING OTHER DEFENSE—FAILURE OF APPRAISAL — RESPONSIBILITY — DOCUMENTARY EVIDENCE—JURY QUESTION—ABSENCE OF DISPUTE—ESTOPPEL TO PLEAD—WITHDRAWAL FROM APPRAISAL—CREDIBILITY OF WITNESS—CROSS-EXAMINATION.

1. An insurance company does not preclude itself from pleading the failure to make an appraisal, as a defense to a suit on a policy, by having filed an answer in a previous suit on the policy, in which, in addition to the failure to have the loss appraised, it pleaded a defense relieving it of all liability.

2. If the insured or his appraiser acting in bad faith prevents appraisement by postponing indefinitely the choice of an umpire or otherwise, it constitutes a defense to a suit on a policy.

3. Where an insurance company does not in good faith carry out an agreement to arbitrate the amount of the loss, but endeavors to utilize the agreement to obtain delay, it absolves the insured from compliance with the clause making arbitration a condition precedent to suit.

4. Where both parties to a policy endeavor to prevent an appraisal, or to render abortive an agreement for one, the appraisement ceases to be a condition precedent to a suit under the provisions of the policy.

5. The rule that the court must determine the meaning of documentary evidence is inapplicable where the dispute is not as to the legal meaning of letters, but as to their tendency to prove one side or the other of an issue of fact, and different inferences may be fairly drawn from them as to the truth.

6. Evidence, in an action on an insurance policy, held to warrant submitting to the jury the question whether the failure to arbitrate was the fault of the company or of the insured.

7. A party to an insurance policy cannot submit to arbitration the question as to the amount of loss, and then say the submission was void because there had been no dispute over the amount.

8. An insured is not entitled to withdraw at will from an appraisal which is merely to ascertain the value of the burned property.

9. Questions asked the agent of a party as to whether he has borne other names, and whether he has tried to induce a witness to swear falsely, are proper as tending to elicit matters affecting his credibility.

Appeal from Circuit Court, Lawrence County; H. C. Pepper, Judge.

Action by Harry Carp against the Queen Insurance Company of America. Judgment for plaintiff, and defendant appeals. Reversed.

R. W. Barger and E. J. White, for appellant. H. H. Bloss and Carr McNatt, for respondent.

GOODE, J.

The plaintiff owned a stock of merchandise in Aurora, Mo., on which he held a policy of insurance from the defendant company. During the life of the policy, to wit, January 29, 1902, the stock was destroyed by fire, and this action was instituted to recover the promised indemnity of $1,000. The plaintiff was the proprietor of the goods, but he resided in St. Louis, and left the management of the store to his brother, Sam Carp, who appears to have had general authority as the plaintiff's agent. Plaintiff was in Aurora, lodging with his brother, when the loss occurred. The fire broke out, or was detected, shortly after midnight. The two brothers swore they retired that night about 9 o'clock and did not leave their beds until aroused by the alarm of fire; but there was considerable testimony that Sam Carp was seen about the store at 10 o'clock, and again shortly before the fire. This testimony clouds the case with suspicion concerning the honesty of the loss, and supports the defense that it was due to the incendiary act or procurement of the plaintiff. There was countervailing evidence in favor of an innocent origin of the fire, and we hold this issue was settled by the finding of the jury in plaintiff's favor. We are asked to reverse the finding on the assumption that the evidence to prove the fire was incendiary was so overwhelming as to produce an irresistible conviction that it was, but we decline to so hold. There was much very contradictory evidence, and enough on either side of the question to support whatever finding the jury might make.

The point we must decide arises on a clause of the contract providing that: "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 parties thereto shall pay the appraisers selected by them and shall bear equally the expenses of the appraisement and the umpire. This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal. * * * 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 of appraisers, when appraisal has been required. * * * No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements. * * * This policy is made and accepted subject to the foregoing stipulations and conditions."

It is requisite, in view of one point made by the plaintiff in favor of an affirmance, to state the substance of the answer, for the plaintiff contends that, by virtue of a like answer in a former suit, the defense of non-observance of the appraisement clause of the policy was waived. Besides a qualified general denial, the answer in this case interposed four defenses: First, a denial that the plaintiff had sustained damages to the amount alleged in the petition—$12,000. Second. There was a difference in regard to the amount of the loss, and the above appraisement or arbitration clause was not carried out before the plaintiff sued; wherefore his action was premature. Third. The plaintiff falsely stated, in his proofs of loss, the sound value of the goods described in the policy, and the damages sustained. The answer alleged the damage did not exceed $1,000, instead of approaching $12,000, as sworn to in the proofs of loss. This false statement was averred to avoid the policy, by virtue of a term in it that it should be void in case of any fraud or false swearing by the insured touching any matter relating to the insurance, or the subject thereof, before or after the loss. Fourth. The plaintiff had set or caused the fire to be set, with the intent to defraud the defendant.

Plaintiff's reply admitted the execution of the arbitration agreement, "for the sole purpose of determining the amount of the loss or damage by fire to the property"; averred that he acted in good faith in selecting an appraiser; that the two appraisers had been unable, after making every reasonable effort to do so, to agree on an umpire, and had failed to determine the amount of damage done by the fire, without fault or connivance on the part of the plaintiff. The reply further averred that the insurance company fraudulently induced plaintiff to execute the arbitration agreement in order to prevent him from suing for his loss, and with no intention to have the loss appraised, or to pay it; that the company failed and neglected to assist plaintiff in procuring an appraisement; that, because of its conduct, the failure to have the loss appraised was no bar to the prosecution of this action. In further avoidance of the defense of want of appraisement, the reply averred that after the agreement to appraise had been signed, but prior to the institution of the present action, the defendant had denied all liability to plaintiff for other reasons than nonappraisement of the loss, namely, because, as it contended, the plaintiff had made false statements, under oath, as to the value of the goods and the amount of the damage, and had intentionally caused the fire. It will be gathered from the above digest of the replication that it raised an issue as to a waiver by the defendant of the arbitration clause of the policy, and an issue, also, as to the defendant's good faith in the attempt made to obtain an appraisal.

In support of the defense that the cause of action had not accrued when the suit was instituted, the defendant introduced an agreement, executed by the plaintiff and seven insurance companies, including the defendant, and submitting to appraisers the question of the amount of the plaintiff's loss, with a proviso that the appraisement should be "without reference to any other questions or matters of difference within the terms and conditions of the policies of said companies, and shall not determine, waive or invalidate any other right or rights of either party to this agreement, but shall be of binding effect only so far as regards the sound value of the property before the fire and the direct or immediate total loss or damage caused by said fire to said property." That proviso accorded with the policy. The agreement contained the names of Sol Jonas, of Aurora, Mo., selected as appraiser by the plaintiff, and of M. A. Potts, selected by the company, and provided that those parties should choose an umpire to decide any differences they might have. Who asked for the appraisement was not shown; but the agreement was willingly signed by Carp, and without fraudulent procurement by the company, though it may have cherished an intention to make use of the agreement to postpone or evade payment. It was signed May 14,...