Dechant v. Globe & Rutgers Fire Ins. Co.

• Decision Date: 10 January 1928
• Court: Wisconsin Supreme Court
• Parties: DECHANT v. GLOBE & RUTGERS FIRE INS. CO.

194 Wis. 579

217 N.W. 322

DECHANT

v.GLOBE & RUTGERS FIRE INS. CO.

Supreme Court of Wisconsin.

Jan. 10, 1928.

Appeal from a judgment of the county court of Waukesha County; David W. Agnew, Judge.

Action by Frank Dechant against the Globe & Rutgers Fire Insurance Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.--[By Editorial Staff.]

Plaintiff bought a Velie touring car in May, 1921, for $1,600. About $135 was added for accessories and repainting, and it was insured for $1,200. The list price was reduced to $1,275 in January, 1922. It was again insured in 1922 for $1,000. The policy in suit was issued August 14, 1923, for $750. It provided:

“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained, with proper reduction for depreciation however caused, and shall in no event exceed what it would then cost to repair or replace the automobile with other of like kind and quality. If the parties differ in the estimate, then by appraisal.”

The car had but slight use during the following winter, and was totally destroyed by fire May 21, 1924. The parties not agreeing as to the amount of loss, resort was had in November to the appraisal provision of the policy. Plaintiff selected Mohr, defendant Marlier, and the two appointed Druecker as umpire. These three met at the office of plaintiff's attorney, and evidence was offered before them tending to show that the value of the car, at the time the policy was issued, and when destroyed, was $900 to $1,000. After leaving that office, the three went to the Velie salesrooms in Milwaukee, where Mohr was that company's representative, and examined price lists and cars of that make. Thereupon, in the presence of the three, Marlier and Druecker signed, in accordance with the terms of the policy, an award of $350 as the car's sound value and the loss and damage. Mohr refused to sign.

In February, 1925, this action was commenced for the $750 stated in the policy, but making no mention of the award; defendant asserting it by answer in March and tendering the $350. On the trial in January, 1926, plaintiff was allowed to amend, over objection, asking that the appraisal be set aside because: (a) That no copy or notice thereof had been served; (b) that the amount thereof was not arrived at or appraisal signed in the presence of the three; (c) that the appraisers did not in good faith find the value of the car, but found it to be $350, well knowing it to be worth $900 to $1,000.

Upon the evidence as to its value in varying amounts from $300 to $950 and $1,100, the jury found its value and consequent damage at $750.

The trial court, upon the issues raised as to the appraisal, and after motions by each party, found that such was a valid and binding award, and that the amount thereof fixed the damages, and, because of the tender, directed judgment dismissing the complaint. Plaintiff appeals.Holt & Coombs, of Waukesha (Charles L. Hickox, of Milwaukee, of counsel), for appellant.

Jacobson & Malone, of Waukesha, for respondent.

ESCHWEILER, J.

[1] While the difference between the award of $350 and the jury's verdict of $750 is quite substantial, and, under the entire...