Fowler v. Merchants' Fire Assur. Corp.
| Decision Date | 14 February 1934 |
| Docket Number | 13776. |
| Citation | 172 S.E. 781,172 S.C. 66 |
| Parties | FOWLER et al. v. MERCHANTS' FIRE ASSUR. CORPORATION. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Anderson County; W. H Grimball, Judge.
Action by Mrs. Maggie Fowler, in her own right and as executrix of the will of G. P. Fowler, deceased, and another, against the Merchants' Fire Assurance Corporation. From the judgment rendered, the plaintiffs appeal.
Judgment reversed, and case remanded for a new trial.
G Cullen Sullivan, of Anderson, for appellants.
Joseph L. Nettles, of Columbia, and Stephen Nettles, of Greenville for respondent.
In September, 1931, the defendant insured one G. P. Fowler against loss, in a sum not exceeding $3,000, through damage by fire to a building owned by him. The value of the house was fixed in the policy at $4,000. In August, 1932, the building being partially destroyed by fire, demand was made upon the defendant for the full amount of the insurance, which the company refused to pay. In November, 1932, the insured died, and thereafter this action was brought by his widow, Mrs. Maggie Fowler, as executrix of his will, and by the Security Mortgage Company, a mortgagee, to whom the loss was made payable as its interest might appear. Judgment was asked for in the sum of $3,000.
The defendant, answering, admitted the issuance of the insurance and that the property was damaged by fire about the time alleged in the complaint, but pleaded as a defense the provision of the policy for the appointment of disinterested appraisers, in the event of disagreement between the parties, to estimate and appraise the loss or damage, and alleged that such an agreement for submission to appraisers had been entered into between the plaintiffs and the defendant, and that the appraisers named had rendered an award in writing, fixing "the proportion of the building destroyed by fire to be thirty-five and one-half (35 1/2) per cent thereof," and that the defendant had offered at all times to pay plaintiffs, in accordance with the award, the sum of $1,420, but that they had consistently refused to accept that amount.
The case was tried before Judge W. H. Grimball and a jury at the April, 1933, term of court of common pleas for Anderson county. A witness for the plaintiffs, Dan Brown, testified that he had been a building contractor and a retail lumber dealer for about twenty-five years; that he had made an examination in September, 1932, of what was left of the house after the fire; and that in his opinion the "salvage or proportion of the house left" was worth $667.74. On cross-examination counsel for the defendant asked him the following question: "What do you figure the sound value of the building?" Over objection of counsel for plaintiffs, the court permitted the witness to answer, which he did as follows: "I arrived at the sound value of that building by taking the amount of the salvage as estimated and adding to that the amount of the fire loss, that is, the material and the labor to recondition the building, putting it back in the condition it was before the fire; by adding these two together I arrived at the sound value as being $2,032.29."
George E. Lafaye, the appraiser named by the defendant, testified, over objection, that the value of the portion of the building destroyed was fixed by the appraisers at $757.93; that
The award of the appraisers, introduced in evidence by the defendant was as follows:
1/2 Per cent of the building.
"Witness our hands and seals at Anderson, South Carolina, this
thirty"first day of January, 1933.
It appears that the appraisers also made in writing an itemized "estimate of salvage and fire damage," which, over objection, was likewise admitted in evidence. This paper, no part of the award, purported to show the estimated value of the salvage to be $1,376.26 and the damage to be $757.93. At the close of the testimony the court, on motion of the defendant, directed a verdict for the plaintiffs for $1,420, with interest from December 20, 1932. Plaintiffs appeal.
The main question presented for consideration is whether the award as made was valid.
Much has been said in regard to the correct rule to be applied in determining the amount of an insurer's liability in a case where there has been a partial loss by fire under a "fixed-value" policy. In the somewhat recent case of Ford v. Fire Insurance Company, 139 S.C. 212, 137 S.E. 678, 679, the issue was whether the loss, being a partial one, should be determined by reference to the sound value of the property at the time of the fire or by reference to the agreed value as fixed in the policy. The appraisers in that case made an award in which they found "the value of the building as per policy...
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