Connecticut Fire Ins. Co. of Hartford v. Cohen

• Decision Date: 29 June 1903
• Citation: 55 A. 675,97 Md. 294
• Parties: CONNECTICUT FIRE INS. CO. OF HARTFORD v. COHEN.
• Court: Maryland Court of Appeals

55 A. 675

97 Md. 294

CONNECTICUT FIRE INS. CO. OF HARTFORD v. COHEN.

Court of Appeals of Maryland

June 29, 1903

Appeal from Baltimore City Court; J. Upshur Dennis, Judge.

Action by Aaron Cohen against the Connecticut Fire Insurance Company of Hartford. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, and SCHMUCKER, JJ.

George Whitelock and John B. Deming, for appellant.

Jacob J.H. Mitnick and Charles F. Harley, for appellee.

SCHMUCKER J.

This is an appeal from a judgment of the Baltimore City court in favor of the appellee in an action of assumpsit against the appellant company on a policy of fire insurance. The policy is in the standard form, insuring, to the extent of $2,000 merchandise located in the appellee's store in Baltimore City. It contains the usual clause providing that, in the event of a loss by fire to the insured goods and a disagreement as to the amount of the loss, it shall be ascertained by two competent and disinterested appraisers the insured and the company each selecting one, the two so chosen to first select an umpire, and the appraisers then to estimate and appraise the loss, and, failing to agree to submit their differences to the umpire, the award in writing of any two to determine the amount of the loss. The policy further provides that the loss shall not become payable until 60 days after due notice and proof, "including an award by appraisers when appraisal has been required," and that "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, nor unless commenced within twelve months next after the fire."

The insured goods were damaged by fire on August 26, 1901, while the policy was in full force. A disagreement as to the amount of loss caused by it having arisen between the appellee and the adjuster representing the company, the appellee requested that the extent of the loss be ascertained by an appraisement. The appellee named Louis Applefeld as one of the appraisers, and the appellant named Albert H. Likes as the other, and a formal agreement for an appraisement was drawn up and signed by the parties on October 29, 1901. This agreement authorized Applefeld and Likes (together with a third person to be first appointed by them, as required by the policy of insurance, and to act as umpire on matters of difference only) to appraise and estimate the actual cash value of, and the loss and damage by fire to, the property described in the policy. The two appraisers failed to agree upon an umpire, and, as a result, no appraisement was made. Each appraiser was a witness in the case, and gave his version of the cause of their disagreement. The evidence although conflicting, tends to prove that the appraisers met promptly after their appointment, and three names were proposed, two by Applefeld and one by Likes, of persons from whom to select the umpire, but, after taking a day for reflection, each rejected the name or names suggested by the other. After that interview no further attempt seems to have been made to proceed with the appraisement. Likes testified that he rejected Applefeld's nominees partly because he had reason to believe that they had sold some of the insured goods to Applefeld, although it does not appear that he informed the latter of his reasons for the rejection. Applefeld gave as his reason for rejecting Likes' nominee that he did not know him. He further testified that he requested Likes to suggest additional names, but the latter refused to do so. Likes, on the contrary, testified that, when no choice of an umpire was made from the three names first mentioned, he at that same interview proposed to submit a list of six names of representative business men of Baltimore and let Applefeld select one of them, but the latter rejected the proposition. Applefeld testified that, when he declined to accept the person proposed by Likes for umpire, Likes said, "If you are not satisfied with him, I will get out of it." Likes denied having said so, but he admitted having told Mr. Deming, the company's adjuster, that he would prefer to step out and let them get another appraiser in his stead. There was also testimony tending to show that, after the failure of the appraisers to select an umpire, the company's adjuster called on the appellee's attorney and ing whether they would name another appraiser, and that the company were considering whether they would name another appraiser in his place, and that he (the adjuster) would let the attorney know in a few days; but he never gave him any further information on the subject.

The effort at an appraisement which was initiated on October 29, 1901, having produced no practical result up to December 24, 1901, the appellee on that day brought the present suit on the policy. The appellant filed the general issue pleas, and also a special plea setting up the terms of the policy in relation to an appraisement of the amount of loss in case of a fire and a disagreement as to the extent of the loss resulting therefrom, and averring that a disagreement as to the amount of the loss by the fire had occurred, and that appraisers had been selected, the agreement for an appraisement had been executed, and that the defendant had in good faith done all in its power to procure the making of the appraisement, but that the appraisement was still pending and unconcluded. To this plea the appellee replied, first, that the appraisement had been abandoned by the appellant, second, that the failure to appraise was not caused by the fault of the appellee, and, third, that the failure of the appraisers to select an umpire, and the abandonment of the appraisement, had occurred without fault on the part of the appellee. The issue was made up by rejoinders to these replications.

There is but one bill of exceptions in the record, and that brings up for our review the action of the court below in rejecting the defendant's first and second prayers. The prayers are as follows: (1) If the jury shall find that the plaintiff's appraiser, Louis Applefeld, prevented the selection of an umpire on matters of difference between the appraisers named in the agreement of October 20, 1901 offered in evidence, and that there has been no appraisement and estimate of the actual cash value of, and the loss and damage by fire to, the property of the plaintiff described in the defendant's policy of insurance, as stipulated in said agreement, then the verdict of the jury must be for the defendant. (2) If the jury shall find that the failure to reach an appraisement and estimate of the actual cash value of, and the loss and damage by fire to, the insured property of the plaintiff in accordance with the agreement of October 29, 1901, offered in evidence, was due to the failure of Louis Applefeld the plaintiff's appraiser, to do in good faith all that he could reasonably be expected to do to agree with the defendant's appraiser, Albert H. Likes, upon a suitable umpire in accordance with said agreement, then the verdict of the jury must be for the...