Hetherington v. Cont'l Ins. Co. of New York
| Decision Date | 27 October 1941 |
| Docket Number | Ag. No. 1. |
| Citation | 311 Ill.App. 577,37 N.E.2d 366 |
| Parties | HETHERINGTON v. CONTINENTAL INS. CO. OF NEW YORK. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Saline County; D. F. Rumsey, Judge.
Action by R. B. Hetherington against the Continental Insurance Company of New York, to recover upon an award of appraisers made under terms of automobile collision insurance policy, wherein defendant filed counterclaim seeking to have the award set aside for fraud. From a judgment in favor of plaintiff, defendant appeals.
Reversed and remanded with directions. Charles T. Flota, of Harrisburg, and Klein, Harrow & Wilkinson, of Chicago, for appellant.
S. D. Wise and Wheatley & Combe, all of Harrisburg, for appellee.
In a trial before the court, without a jury, the plaintiff obtained a judgment against the defendant for $843.80 and costs. Defendant appeals.
The complaint filed September 16, 1940, alleged and the undisputed facts show that plaintiff was the owner of a four-door sedan which he purchased new in April, 1938, for the sum of $1,204, and which the defendant insured against all loss and damage by collision in excess of $50; that on December 23, 1939, while the policy of insurance was in force, the car was damaged in an accidental collision; that plaintiff and defendant attempted but were unable to agree upon the amount of loss and damage, and that the policy among other things provided that:
The complaint further alleged, and the undisputed facts show, that on March 5, 1940, defendant made a written demand on plaintiff for an appraisal of the loss and damage in accordance with the above quoted provision of the policy; that pursuant to such demand the plaintiff selected Bert W. Rude as one of the appraisers and the defendant selected John Stockhowe as the other appraiser; that on April 24, 1940, plaintiff and defendant entered into a written agreement which recited that said appraisers should select an umpire, and should then estimate and appraise the loss, stating in writing (1) Sound Value and (2) Loss and Damage. Said agreement further stated that:
“The award of any two, in writing, shall determine the matters hereby submitted for appraisal.
“The Sound Value to be ascertained is the actual cash value of said property at the place of, and immediately prior to, the occurrence of said collision (with proper deduction for depreciation howsoever caused.)
“The Loss and Damage to be ascertained is the actual direct loss or damage by said collision.
“Neither said sound value nor said loss or damage shall exceed what it would have cost the first party to repair or replace the said damaged or destroyed property, at the time of the occurrence of said collision with material of like kind and quality, less depreciation, * * *.”
The complaint further alleged and the undisputed facts show that the appraisers neglected for more than fifteen days to appoint an umpire, whereupon the plaintiff made a written request to D. F. Rumsey, Judge of the Circuit Court of Saline County, requesting the appointment of an umpire, and said judge on June 8, 1940, pursuant to such request, appointed Oscar Turner as such umpire; that thereafter said appraisers and said umpire on June 14, 1940, were sworn and qualified as such; that thereafter and on June 14, 1940, Stockhowe and Rude, as such appraisers, made an award in writing in which they found that the sound value of said automobile at the time of said collision and upset was $904, and that the loss and damage sustained by the plaintiff was $829. This award was duly filed with defendant. Under date of April 24, 1940, plaintiff and defendant entered into an additional agreement by which the defendant agreed to guarantee payment to plaintiff of towing charges in the sum of $10, and to guarantee payment to plaintiff of storage charges at the rate of $6 per month, and pursuant to such last agreement the plaintiff expended the sum of $33.20 for storage of the salvage of said automobile from December 23, 1939, to June 10, 1940.
By the complaint, plaintiff claimed he was entitled to $779, the same being the amount of the loss and damage as fixed by the award after deducting $50 as the deductible portion of the loss, and the further sum of $43 representing the towing and storage charges which plaintiff alleged defendant had agreed to pay.
Defendant filed an answer and counterclaim. In both the answer and counterclaim the only material defense set forth is that the award of damages made by the appraisers was so grossly in excess of the plaintiff's actual damages as to amount to fraud; that at the time of the accident the actual sound value of the plaintiff's automobile was no more than six or seven hundred dollars, and that plaintiff's automobile could have been repaired and restored to its original condition before the accident for $217.38. In the counterclaim defendant further alleged that the submission agreement was deliberately or indirectly misapprehended by the appraisers and the facts disregarded by them with the result that the alleged award became void or voidable because of fraud. Defendant asked to have said award set aside by reason of such fraud.
On motion of plaintiff the trial court struck the foregoing alleged defenses from the defendant's answer and also struck the entire counterclaim. At the trial, defendant offered to prove that plaintiff's automobile could be repaired and restored to its condition prior to the accident for the sum of $217.38, which evidence the trial court refused to admit. These rulings of the trial court have been assigned as error by the defendant.
The judgment entered by the trial court was the...
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