Georgia Home Ins. Co. v. Kline

• Decision Date: 13 April 1897
• Parties: GEORGIA HOME INS. CO. v. KLINE ET AL.
• Court: Alabama Supreme Court

21 So. 958

114 Ala. 366

GEORGIA HOME INS. CO. v. KLINE ET AL.

Supreme Court of Alabama

April 13, 1897

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by H. A. Kline & Co. against the Georgia Home Insurance Company to recover on a policy of fire insurance. Judgment for plaintiffs, and defendant appeals. Reversed.

Alex T London and John London, for appellant.

Cabaniss & Weakley, for appellees.

HEAD J.

The plaintiffs sued the defendant insurance company for the loss by fire of a stock of merchandise insured by the defendant. The policy contained the following stipulation: "In the event of a disagreement as to the amount of the loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insurance company and the insured each selecting one, and the two so chosen shall 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 of any two in writing shall determine the amount of such loss. The parties thereto shall pay the appraisers selected by them, and shall bear equally the expenses of the appraisal and umpire." Differences having arisen, the appraisers and umpire were duly selected, and they entered upon the discharge of their duties and made their award in writing. There was also a separate agreement of submission entered into in writing by the parties after the loss occurred, as follows: "That Isaac P. Patterson and E. A Scott shall appraise and estimate the sound value and the loss upon the property destroyed and damaged by the fire of the 25th of December, 1894, as specified below: provided that the said appraisers shall first select a third, who shall act with them in matters of difference only. The award of said appraisers, or any two of them, made in writing, according to this agreement, shall be binding upon both parties to this agreement. It is expressly understood that this agreement and appraisement is for the purpose of ascertaining and fixing the amount of the sound value and loss and damage only, to the propetry hereinafter described, and shall not determine, waive, or invalidate any other right or rights of either party to this agreement. The property on which the sound value, loss, and damage is to be determined is as follows, to wit: 'H. A. Kline & Co. Upon their stock of dry goods, notions, clothing, gents' and ladies' underwear, boots, shoes, trunks, valises, hats, caps, and such other merchandise, not more hazardous, as is usual to their trade; all which is contained on the first and second floors of the two-story brick metal-roof building, situated number 120, on the west side of 19th street, between 1st and 2d avenues, in Birmingham, Ala.' It is further expressly understood and agreed that, in determining the sound value and the loss or damage upon the property hereinbefore mentioned, the said appraisers are to make an estimate of the actual cash cost of replacing or repairing the same, or the actual cash value thereof, at and immediately preceding the time of the fire, and, in case of depreciation of the property from use or age, condition, location, or otherwise, a proper deduction shall be made therefor." The award was as follows: "We have carefully examined the premises, and the remains of the property hereinbefore specified, in accordance with the foregoing appointment, and have determined the sound value to be twelve thousand six hundred and sixty-one dollars and twenty-one cents ($12,661.21), and the loss to be five thousand nine hundred and thirty-seven dollars and seventy-one cents ($5,937.71). Witness our hands this 12th day of Jan., 1895. [Signed by the arbitrators.]"

The defendant pleaded in bar of the action the agreement contained in the policy, the special agreement of submission and the award, and, further, alleged payment by the defendant to the plaintiffs of the sum awarded to them. The plaintiffs replied that a large portion of the property covered by the policy was wholly consumed and destroyed in said fire, to wit, to the amount of $2,500, and of said property so destroyed there were no remnants or remains, but the same was wholly consumed and reduced to ashes; that for some reason, unknown to them, the arbitrators did not undertake, and refused and declined, to appraise or pass upon either the sound value of, or the loss upon, the property so wholly consumed and destroyed, but only appraised and estimated the sound value and loss and damage of the property...