Harowitz v. Concordia Fire Ins. Co.
| Decision Date | 17 June 1914 |
| Citation | 168 S.W. 163,129 Tenn. 691 |
| Parties | HAROWITZ v. CONCORDIA FIRE INS. CO. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.
Suit by B. Harowitz against the Concordia Fire Insurance Company. From a decree for plaintiff, awarding insufficient relief both parties appeal. Affirmed.
J. H Malone and H. H. Litty, both of Memphis, for plaintiff.
R. Lee Bartels, of Memphis, for defendant.
The bill prayed for a decree for the full amount of an insurance policy covering the stock of goods in a tailor shop, also for interest and the statutory penalty of 25 per cent. of the face of the policy. The decree granted was for the full amount of the policy, $2,000, and interest, $155. Recovery of the penalty was denied. Both parties appealed, and each have assigned errors here.
The company's complaint is that a decree for any amount was erroneous, while Harowitz insists that, in addition to the other amounts, he was also entitled to recover the penalty. The answer of the company admitted issuance of the policy and that a fire had occurred in the shop of assured, but denied total loss of the value of the goods. It admitted that the company had received proofs of loss, and made no complaint of informality or insufficiency of the same, but averred that the damage consisted solely of water damage to the woolens and other materials. It then set up what we take to be the real defense relied on, to wit, that the insurer had demanded an appraisal of the goods, and that by reason of default of assured no appraisal had occurred, and that, under the terms of the contract of insurance and facts of the case subsequent to the fire, appraisal of the goods and determination thereby of the sound value and loss was in law a condition precedent to the right of assured to recover upon the contract. The answer denied liability for the penalty, and averred that conditions existed on the premises of the assured after the fire such as justified the conviction that the fire was of incendiary origin; but the answer did not charge the fire to have been set by assured, or to have been caused by his negligence or procurement. In conclusion, the answer states:
"And now, having fully answered, it prays to be dismissed, with costs."
The policy contains a clause as follows:
"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, unless commenced within 12 months next after the fire."
The fire occurred August 1, 1912. It is manifest that if the defense made by the answer should be successful, and this suit should be dismissed, and a new suit be instituted, the beginning of the new suit would be more than 12 months next after the fire, as the date of the fire was August 1, 1912; and therefore it is clear that the defense made by the answer amounts in substance to a denial of all liability by the company. In fact, the averment in the answer that the damage to the goods consisted solely of water damage to the woolens and other materials amounts in substance to a denial of all liability under the policy, since under its terms the company was only liable for loss and damage caused by fire.
It has been held by this court that:
Hickerson & Co. v. Insurance Companies, 96 Tenn. 198, 33 S.W. 1042, 32 L. R. A. 172.
The conduct of the company in the present case does not measure up to the standard laid down for it in the quotation last above set out. What was done on each side in respect of the demand for an appraisal which was made is to be gathered from the testimony of two witnesses, one of whom testified on behalf of the insured, and one of whom testified on behalf of the insurer. The witness who testified on this subject for the insured was Mr. H. H. Litty, attorney for the insured. It appears from his evidence that he was employed by the insured about September 1, 1912, to act for assured in the adjustment of this loss, and that he immediately called upon the local agent for the insurer, and was by that agent referred to Mr. Hart, adjuster for the insurance company. Litty called on Hart, and was advised by the latter to make proof of loss and send it to the company. This Litty did, and mailed the proofs of loss to the home office of the company by registered letter on September 7, 1912. No reply was made by the company to Litty acknowledging receipt of the proofs of loss, but in due season Litty received through the post office the registry return receipt, showing delivery of the proofs of loss to the company on September 9, 1912. Some time afterward Litty and Hart met on the street, and the latter requested Litty to call at his (Hart's) office. This Litty did, whereupon Hart demanded having an agreement entered into submitting the matter to appraisers, to which Litty says he agreed. Whereupon he says Hart named as an appraiser for the company Mose Plough, and Litty named Ed. Rapp. Hart immediately objected to Rapp on the ground that Rapp was biased, basing such claim upon the fact that Rapp had examined all of the goods damaged by fire, and had made this examination at the request of Litty, and had also made an estimate for Litty of the damage caused by fire to some of the goods. Litty says that he selected Rapp, because Rapp was regarded as an expert. He further says that he had called on Rapp and had submitted to him a copy of the oath required of appraisers, and that Rapp was willing to take the oath, and that in view of these matters he refused to withdraw the name of Rapp, and thereupon he stated that Hart refused to enter into an appraisement with Rapp acting for Harowitz. Litty complains that the conduct of Hart was overbearing, dictatorial, and insulting to such an extent that Litty was led to believe that Hart's demand for an appraisement was not in good faith. Litty furthermore says that, when Hart named Mose Plough as one of the appraisers, he (Litty) did not object, although he had always understood that Plough had some interest in the insurance company's affairs, and frequently acted for them as an auctioneer in selling salvage.
Mr Hart, the witness for the insurer, in his evidence admits that he objected to Rapp as an appraiser for Harowitz, and gives as his reason that Rapp had been working with Harowitz, and had made an estimate ex parte as to what he (Rapp) considered the damage to the goods was by the fire, and that he (Hart) considered Rapp was incompetent to act as an appraiser under the oath demanded. Hart further testifies that after the first interview between himself and Litty,...
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Morrow v. State Farm Fire & Cas. Co.
...[Docs. 27, pg. 4; 27-1, pg. 20] (emphasis added). This type of appraisal provision is valid in Tennessee. Harowitz v. Concordia Fire Ins. Co. , 129 Tenn. 691, 168 S.W. 163, 165 (1914). Courts "regularly compel appraisal pursuant to such provisions," even though these motions are not brought......