Continental Ins. Co. of New York v. Guerson
| Decision Date | 08 April 1936 |
| Docket Number | No. 9718.,9718. |
| Citation | 93 S.W.2d 591 |
| Parties | CONTINENTAL INS. CO. OF NEW YORK v. GUERSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; F. Stevens, Judge.
Suit by John Guerson against the Continental Insurance Company of New York. Judgment for plaintiff, and defendant appeals.
Affirmed.
Frank B. Buchanan, Nat L. Hardy, and T. M. West, all of San Antonio, for appellant.
Kilday & Howard, Jay Sam Levey, and Fred Russi, all of San Antonio, for appellee.
On May 15, 1932, the residence occupied by appellee, in San Antonio, Tex., was partially destroyed by fire, and the furniture, household goods, and personal effects of appellee and his wife were damaged or destroyed. Fire insurance in the amount of not to exceed $1,500 was carried on such household furniture and personal effects by appellee with the appellant company. Immediately after the fire the agent of appellant was furnished by appellee with a list of alleged lost and damaged articles aggregating $2,220.60, and claim or proof of loss duly made under the terms of the policy of insurance. When the policy of insurance was executed and delivered by the agent of appellant to appellee, the said household goods, furniture, and personal effects were appraised and valued by appellant at $2,000.
Appellant refused payment as demanded by appellee, and resort was had by the parties to the provisions of the policy providing for the appointment, by the respective parties, of an appraiser on behalf of each, and an umpire, as stipulated in the contract of insurance, for arbitration of their differences.
The agreement for arbitration in the customary form was duly signed by the parties on June 3, 1932; appellant chose one A. A. Albert in its behalf, and appellee, William Gill. On the same day said two arbitrators selected M. S. Erckener as umpire, and each of the three duly executed, before a notary public, the declaration of appraisers, as follows:
On June 6th, thereafter, said three parties returned the following report, being a unanimous decision, duly signed and sworn to by each:
Appellant thereupon offered to pay appellee the said sum of $473.75 in full settlement of all claims under the terms of the policy of insurance, contending that the agreement for arbitration as duly executed by and between the parties, and the said findings made pursuant thereto, and in the said amount so found by the arbitrators and the umpire, were in all things valid and binding on each of the parties thereto.
Appellee, however, refused to be bound by the finding of the arbitrators or to accept the said amount so determined and offered to him by appellant, and on September 12, 1932, filed this suit in the Forty-fifth district court of Bexar county to collect on the policy of insurance, in accordance with its terms; making the usual and requisite allegations in respect thereto, concerning execution of the policy, loss by fire, proof of loss, demand for and refusal of payment. Appellee further alleged the facts relating to the agreement for arbitration of the claim, but contended that appellant would not attempt to adjust the loss or pay the claim without resorting to the provisions of the policy providing for such arbitration; that the purported award of the arbitrators was not, for various alleged reasons or assertions, in any manner binding upon appellee, and that same should be in all things set aside and held for naught.
Specifically, appellee alleged: (a) That A. A. Albert, selected by appellant, was incompetent and wholly uninformed as to the kind and character of the property lost, that he was not impartial, but was biased in appellant's favor, and in reality acting for and on behalf of appellant; that he influenced the others and was directly responsible for the award; (b) that said Albert took the lead and was instrumental in securing the award in favor of appellee, which was grossly inadequate and far below the true value of the property lost; (c) that the other parties to the award agreed to recommendations made by Albert, and that they had and secured no information concerning the property other than as given to them by said Albert; (d) that the appraisers had and sought no information as to the character or quality of the property lost, either before or after the fire, that they wholly failed to hear any evidence or call any witnesses to inform themselves or secure any true information concerning the property lost; (e) that F. A. Towne, agent of appellant, was in charge of the appraisement for appellant and gave the appraisers their instructions, that appellee and his wife requested permission of said Towne to be present at the time of the appraisement, to give true information as to the kind, character, and condition of the lost property, that they were informed by Towne of the time and place, but when they presented themselves for such purpose they were informed that the appraisement had already been made; (f) that all of said appraisers were biased in favor of appellant and that all of said appraisers were partial to appellant, and the figures arrived at by said appraisers as constituting the sound value of said property and the figures constituting the loss and damage are not in truth and in fact the sound value and loss and damage thereof, for the reason that said appraisers did wholly fail to ascertain either the sound value or the loss and damage of said property and simply wrote down and returned an arbitrary figure arrived at without any investigation or evidence and without any knowledge of the actual sound value thereof and without any knowledge of the loss and damage thereof; (g) that the figures agreed upon as an appraisement were arrived at by reason of the fraud practiced upon said appraisers by appellant and by reason of the fraud practiced upon the other appraisers by said Albert, who furnished the only information before them as to the kind, quality, and condition of the property covered by the policy; (h) that the award was the result of a mistake on the part of the appraisers as to the value, kind, and character of the property, because they failed to acquaint themselves with the true facts or to adequately deliberate upon the matter; (i) that by reason of such fraud on the part of appellant and said Albert, and the gross mistake of the appraisers, the "sound value" of the said property was placed at the "grossly inadequate" value or amount of $518.50, whereas the true and actual value thereof was $2,220.60, and the loss and damage to said property was placed at $473.75, which is grossly inadequate and the result of the incompetency, bias, and partiality on the part of the appraisers in favor of appellant; (j) that for such reasons the award and appraisement should be held for naught and set aside.
By order duly entered on May 15, 1933, the case was transferred to the Seventy-third district court of Bexar county, where it was tried before a jury, and judgment entered against appellant on the 22d day of November, 1934.
Appellant generally and specially excepted to the pleadings of appellee in the utmost detail, and denied generally the allegations of appellee; pleaded the appraisal provision of the policy of insurance; alleged that the appraisal agreement had been duly entered into between the parties, pleading same in extenso; that the board of appraisers had made an award of $473.75, duly signed by all the appraisers, and that appellant had tendered that amount to appellee; that appellee had repudiated his appraisal agreement and refused to accept the said sum of $473.75, which amount appellant likewise tendered into court, in full satisfaction of appellee's damages.
The trial court overruled all of appellant's general and special exceptions, and submitted the case to a jury on certain special issues and under certain definitions and instructions. The jury thereupon found the facts as follows:
(1) That the appraisers acted arbitrarily in finding $518.50 as the sound value of the personal property in question.
(2) That the appraisers acted arbitrarily in finding $473.75 as the loss and damage to the personal property in question.
(3) That the sum of $518.50, as found by the appraisers as the sound value of the property in question, is grossly inadequate.
(4) That the sum of $473.75, as found by the appraisers as the loss and damage to the property in question, is grossly inadequate.
(5) That the pecuniary loss or damage caused to the property and effects of appellee while contained in the house, by reason of the fire in question, was the amount of $1,670.
Upon such findings and verdict the court entered judgment in favor of appellee and against appellant in the sum of $1,500, with interest, the maximum amount of the policy. From such judgment, appellant brings this appeal.
Appellant challenges the validity of the judgment entered herein through six propositions, and numerous assignments of alleged error,...
To continue reading
Request your trial
-
Hartford Lloyd's Ins. Co. v. Teachworth, 89-2041
...v. Farmers Elevator Co., 141 S.W.2d 1024, 1026 (Tex.Civ.App.--Amarillo 1940, no writ); Continental Insurance Co. of New York v. Guerson, 93 S.W.2d 591, 594 (Tex.Civ.App.--San Antonio 1936, writ dism'd). Third, the court's review of the appraisal under FAA standards led it to make certain fa......
-
Providence Lloyds Ins. Co. v. Crystal City Independent School Dist.
...dism'd by agr.). Every reasonable presumption will be indulged to sustain an appraisal award. Continental Ins. Co. v. Guerson, 93 S.W.2d 591, 594 (Tex.Civ.App.--San Antonio 1936, writ dism'd). An award entered by appraisers and an umpire can be disregarded if: (1) the award was made without......
-
Garcia v. State Farm Lloyds
...and rendered because there was no mistake—the award was the intended result); see also Continental Ins. Co. of N.Y. v. Guerson , 93 S.W.2d 591, 594 (Tex. Civ. App.–San Antonio 1936, writ dism'd) ("Any errors of judgment, honestly and fairly exercised, on the part of the [appraisers] in maki......
-
TMM Invs., Ltd. v. Ohio Cas. Ins. Co.
...Mut. Fire Ins. Ass'n, 154 S.W.3d 777, 786 (Tex.App.—Houston [14th Dist.] 2004, no pet.); Continental Ins. Co. v. Guerson, 93 S.W.2d 591, 594 (Tex.Civ.App.—San Antonio 1936, writ dism'd). An appraisal award will be upheld unless at least one of three circumstances exists: (1) the award was m......