Ex parte Birmingham Fire Ins. Co.

• Decision Date: 14 January 1937
• Docket Number: 6 Div. 48
• Citation: 172 So. 99,233 Ala. 370
• Parties: Ex parte BIRMINGHAM FIRE INS. CO.
• Court: Alabama Supreme Court

172 So. 99

233 Ala. 370

Ex parte BIRMINGHAM FIRE INS. CO.

6 Div. 48

Supreme Court of Alabama

January 14, 1937

Original petition of the Birmingham Fire Insurance Company for mandamus to Richard V. Evans, as Judge of the Circuit Court Jefferson County.

Mandamus denied.

Bradley Baldwin, All & White, of Birmingham, for petitioner.

Leader Hill, Tenenbaum & Seedman, of Birmingham, for respondent.

KNIGHT Justice.

The petitioner, Birmingham Fire Insurance Company, has filed its original petition in this court praying for a writ of mandamus to issue to the Honorable Richard V. Evans, as judge of the circuit court of Jefferson county, requiring the respondent judge to set aside and vacate an order and judgment made by him sustaining demurrers to its motion to have a certain cause, wherein the petitioner is defendant and Ollie Belle Carr is plaintiff, transferred from the law side to the equity side of the docket; and to require the respondent to make said transfer.

It appears from the exhibits to the petition, and made a part of the same, that the said Birmingham Fire Insurance Company had issued to the said Ollie Belle Carr a policy of fire insurance, insuring certain property of the insured against destruction by fire, and that while said policy was in force, the property was wholly destroyed.

The insurance contract contained the following provisions:

"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 or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other or like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described.

"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 appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire."

After the loss occurred, the insurer and insured could not agree upon the amount of the loss, and, pursuant to the terms of the insurance contract, it was agreed that the amount of the loss should be ascertained by two appraisers, one to be appointed by the insured and one by the insurer, and providing further that the appraisers should first select an umpire, who should act with them in matters of difference only. Accordingly, the parties, on February 25, 1936, entered into a written agreement for arbitration, and each appointed an appraiser, and the two appraisers selected an umpire.

It is averred that the arbitrators entered upon their duties of appraising the loss under their appointment, and, while so engaged, the insured "declined and refused to proceed with the performance of said agreement and declined and refused to make available to the said appraisers and umpire for examination, inspection and investigation articles in her possession or under her control alleged to have been lost or damaged in the said fire, and declined and refused to submit to questioning by the said appraisers and umpire with reference to the said loss, and declined to furnish information at her disposal and necessary to the performance by the said appraisers and umpire of the said agreement." It is averred that on account of the insured's conduct the appraisers and umpire have been unable to carry out and consummate the said appraisal and to ascertain the amount of the loss as provided in the said policy and the said agreement; and that by reason of such conduct defendant has been irreparably damaged, and cannot be placed in statu quo otherwise than by the consummation of said appraisal and the performance of the said agreement.

It further appears that before any award was made by the appraisers, the insured instituted a suit at law on the policy of insurance. The petitioner averred his readiness and willingness to perform all duties required of him by the agreement for arbitration, and also his readiness to pay any award that the arbitrators might make in the premises.

In its motion to transfer the cause to the equity docket, the movant averred, in terms, that he had an equitable right or defense, the decision of which should dispose of the cause and which cannot be disposed of on the law side of the court. But such equitable right or defense relied upon was predicated upon the facts above recited, taken in connection with the fact that, in proceeding with the arbitration, the petitioner had expended sums of money, and that his status quo could not be reestablished.

The prayer of the motion was, that the suit at law on the policy of insurance be transferred to the equity side of the docket; that the court enjoin and restrain the plaintiff and her agents from interfering with or preventing the said appraisers "from examining, estimating, appraising and ascertaining the amount of the loss pendente lite; that the court enter an order requiring the plaintiff to carry out and perform the said agreement for submission to appraisers hereinabove referred to," and that the plaintiff be enjoined and restrained from instituting or prosecuting any other suit or action against the defendant to recover for the said loss under the said policy pending the determination of this suit.

The petitioner in his brief undertakes to make it clear that it is not asking the court "specifically to enforce an agreement to submit a controversy to arbitration, but it is asking the court to enjoin the plaintiff from interfering with the performance by the arbitrators of the agreement under which...