Fisch v. Transcontinental Ins. Co., 13912
| Citation | 356 S.W.2d 186 |
| Decision Date | 22 March 1962 |
| Docket Number | No. 13912,13912 |
| Parties | Laura FISCH, Appellant, v. TRANSCONTINENTAL INSURANCE COMPANY, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Al Crystal & The Kempers, Houston, T. M. Kemper, Houston, of counsel, for appellant.
Bryan & Patton, Julietta Jarvis, Houston, for appellee.
This suit was brought by appellant on an insurance policy issued by appellee, to recover loss resulting from fire damage to her home at 2510 Calumet Street, Houston, Texas, on September 14, 1958. On December 17, 1958 appellant entered into an appraisal agreement with appellee. On or about June 15, 1959, J. W. Northrup, the appraiser appointed by appellee, and the umpire, Wylie W. Vale, without the appraiser appointed by appellant joining therein, made and signed an award for appellant in the sum of $7,201.92. Prior to the date of the award, but apparently with knowledge of what it would be, appellant filed suit on June 1, 1959, to recover the loss, alleging that it exceeded the policy coverage of $20,000.00.
After hearing appellant's case and the testimony of the umpire, the trial court discharged the jury and rendered judgment for appellee in the amount of the award. Appellant asserts that the court erred in doing so because as a matter of law the award in question was invalid and did not conform to the provisions of the policy, and also because fact issues were raised with respect to the award which, if found favorably to appellant, would justify setting it aside.
The memorandum of appraisal, Defendant's Exhibit No. 1, shows that on December 17, 1958 appellant and appellee respectively appointed E. W. Osterloh and J. W. Northrup to appraise the actual cash value of the property and the amount of loss directly caused by the fire. On March 5, 1959 said appraisers committed themselves under oath to make an appraisal and award, and they appointed Wylie W. Vale as umpire to settle any matters of difference between them. On the same day said umpire accepted the appointment and stated under oath that he would act with strict impartiality in all matters of difference submitted to him and would make a true, just and conscientious award.
The policy provides:
Appellant contends that the award of June 15, 1959 is invalid because made by one of the appointed appraisers and the umpire without any showing that there was a failure of the appraisers to agree or that they had any differences which were submitted to the umpire, and because without such disagreement and differences existing the umpire had no authority to act.
Neither Mr. Osterloh nor Mr. Northrup was called to testify. The record is silent as to whether they ever met and discussed the value and damage, or whether there were any differences between them or whether they failed to agree, or whether or not Mr. Osterloh ever appraised the property, or refused to act. There is no evidence of his activities after the time he accepted the responsibility of acting as an appraiser.
Mr. Vale, called as a witness by appellee, testified that he personally inspected the premises and thereafter met with Mr. Northrup and they arrived at the actual cash value of the house and the pine trees before the fire; that Northrup first talked to him about being an appraiser in the case; that he personally went to the premises at least three times; that he increased Northrup's figure as to damages to the shingle roof; that he and Northrup resolved whatever differences there were and arrived at the total figure of $7,201.92; that he did not know Mr. Osterloh; that Osterloh was not present at any time that he and Northrup were together, nor when he and Northrup figured out $7,201.92, and that Osterloh and Northrup never did at any time submit any differences to him.
He further testified as follows:
'Q What difference did you resolve as the umpire between Mr. Osterloh and Mr. Northrup?
'A Mr. Osterloh never did submit it to me.
'Q You didn't resolve any differences?
'A No, sir.
'Q So you and Northrup got together between the two of you and made the appraisal that is, this $7,201.92?
'A Mr. Northrup made one and after checking it concurred that was our best knowledge.
* * *
* * *
'Q Well, in effect, other than the few items you added you merely endorsed Northrup's appraisal, isn't that the effect----
'A In effect, yes, sir.'
On cross-examination appellant testified that she did not know Mr. Osterloh or Mr. Northrup or Mr. Vale and never talked to Osterloh; that she made no request of Northrup or of Vale to appear before them, and as far as she knew, her lawyer did not do so; and that her only complaint was that the building could not be restored for the amount of the award.
There is authority to the effect that if one of the appraisers resigns or deliberately refuses to act, the other appraiser and the umpire may make an award. In re Appointment of Falloon, 1958, 161 Cal.App.2d 522, 327 P.2d 18; German Ins. Co. v. Hazard Bank, 31 Ky.Law Rep. 1126, 104 S.W. 725. See also 6 Appleman on Insurance Law & Practice, p. 366, where it is stated: 'If one appraiser or arbitrator resigns, withdraws, or refuses to act further, it has been held that the other one and the umpire may complete the proceeding and make a valid award.' In the instant case there is nothing to show that Osterloh resigned or deliberately refused to act as an appraiser. Therefore, we cannot sustain the award on such ground. True, the award is not invalid on its face since it complies with the policy requirement to the extent of being an award in writing 'of any two'.
The general rule is that every presumption will be indulged in favor of an award unless contradicted by proof. Providence Washington Ins. Co. v. Farmers Elevator Co., Tex.Civ.App., 141 S.W.2d 1024; Robbs v. Woolfolk, Tex.Civ.App., 224 S.W. 232; Green v. Franklin, 1 Tex. 497. Appellant asserts that there is evidence which destroys such presumption in this case and which invalidates the award as a matter of law. This contention requires an analysis of the evidence.
There is no evidence as to whether Osterloh and Northrup did or did not fail to agree as to the loss. If they did not fail to agree, there was nothing to submit to the umpire and nothing upon which he could act. If they did fail to agree, then they were required by the policy to submit their differences only to the umpire. There is nothing in the policy giving the umpire the right to act in the absence of differences between the appraisers. The record is silent as to whether there were any differences. The umpire testified that no differences were submitted to him and that he resolved no differences between the appraisers. There is no evidence to the contrary. Since the umpire's power to act is conditioned upon a disagreement between the appraisers and the submission of their differences only to him, we are of the opinion that the award, which was signed by only one appraiser and the umpire who had no authority to act, is invalid. See 6 Appleman on Insurance Law & Practice, p. 368, where it is stated:
An appraiser's acts in excess of the authority conferred upon him by the appraisal agreement is not binding on the parties. North River Ins. Co. v. Adams, Tex.Civ.App., 300 S.W. 185, writ ref.; Reliance Ins. Co. v. Bowen, Tex.Civ.App., 54 S.W.2d 597. It has also been held that an award which is not made substantially in compliance with the requirements of the policy will not be sustained. Reliance Ins. Co. v. Bowen, supra; Carr v. American Ins. Co., D.C., 152 F.Supp. 700; Continental Ins. Co. v....
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