Home Ins. Co. v. Ketchey

• Decision Date: 31 December 1931
• Docket Number: No. 1087.,1087.
• Citation: 45 S.W.2d 350
• Parties: HOME INS. CO. v. KETCHEY et al.
• Court: Texas Court of Appeals

45 S.W.2d 350

HOME INS. CO. v. KETCHEY et al.

No. 1087.

Court of Civil Appeals of Texas. Waco.

December 31, 1931.

Appeal from Leon County Court; John H. Atkinson, Judge.

Action by J. R. Ketchey against the Home Insurance Company, in which Ked Wallace intervened. From the judgment rendered, defendant appeals.

Reversed and remanded.

Leachman, Gardere & Bailey, of Dallas, for appellant.

M. L. Bennett, of Normangee, for appellees.

GALLAGHER, C. J.

J. R. Ketchey, hereinafter called appellee, sued the Home Insurance Company, hereinafter called appellant, on a fire insurance policy issued to him by it promising to indemnify him against loss or damage to his automobile by fire in a sum not to exceed $950. The car was a Nash sedan. It was purchased new October 24, 1929. The total cost thereof was $1,240, of which a part was paid in cash, a part by the delivery of a used car, and the remainder by a note secured by a lien on the new car. Appellee Ked Wallace, the holder of the unpaid purchase-money note, intervened. No issues involving his rights are raised in this appeal. Appellee's car was badly damaged by fire on March 30, 1930. The speedometer thereon showed that it had been run approximately 6,500 miles. There was testimony tending to show that the car at the time it was burned was in good condition, and that the only visible injuries was evidence of having been run over ordinarily rough country roads and of a few cracks in the fenders, which were of light material. Appellant and appellee were unable to agree upon the amount of damage. Negotiations for a settlement continued until some time in September, when appellant proposed, and appellee consented to, an appraisement. Appellant appointed W. W. McClellan as its appraiser. Appellee appointed W. W. Newberry. Said appraisers together selected L. D. Oliver as umpire. Appellant's appraiser, McClellan, was engaged in Dallas in the garage business and in repairing or rebuilding wrecked cars. He had served as an appraiser for appellant on two prior occasions. The testimony does not disclose the extent of his service in that capacity in the appraisal of damage to cars for other insurance companies. Appellee's appraiser, Newberry, was a bookkeeper in a Ford sales agency. He was not familiar with any other class of cars. He was wholly uninformed with reference to the original cost of Nash cars or the reasonable cost of repairs and replacements thereon. There is nothing in the testimony to indicate that he had ever served as an appraiser before. He had no conversation with appellee prior to the appraisement. The appraisers, together with the umpire, met at the damaged car. There was testimony that they spent five or ten minutes examining the same; that they walked around the car, looked in the window at the inside thereof, lifted one side of the hood and looked at the engine; that no further examination was made; that appellant's appraiser McClellan took the lead in making the appraisement; that he told Newberry that appellee's car should have been bought at nine hundred or nine hundred and fifty dollars, that he could take it into his shop in Dallas, put on a new top, new upholstering, new fenders, and rewire it, for $450 or $500; that Newberry, being wholly uninformed on such matters, accepted his statements. McClellan wrote an award placing the sound value of the car at $550, the salvage at $50, and appellee's loss at $500. The same was signed by the appraisers. The umpire, Oliver, did not take any part in the appraisement, but he signed the award. Appellee was nearby at the time of the appraisal. Nobody asked him any questions about the prior condition of the car. Newberry testified that, while he knew the car was in first-class condition prior to the fire, he did not consider such fact, but relied on McClellan's statement as to the cost of the repairs suggested by him. McClellan testified that a new body was not necessary, and that he estimated the cost of a new top, new upholstering, new fenders, rewiring, and repainting only. There was no testimony that the repairs or replacements enumerated would have put appellee's car in substantially the same condition it was in before the fire. McClellan merely testified that the same would put the car "in running condition." Oliver did not testify. The award was presented to appellee immediately after it was made, and the representative of appellant present at the time urged him to accept it, but he immediately repudiated it as unfair and unjust to him.

Appellant as a defense in this suit relied on the award as made, and paid the amount of the same into court. Appellee assailed such award as unfair and grossly inadequate to compensate him for his loss. He alleged that McClellan was unfair and partial to appellant, and that Newberry intentionally disregarded the condition and value of said car prior to the fire.

The case was submitted to the jury on special issues. Said issues, with the answers of the jury thereto, were as follows:

"(1) Did the appraisers, W. W. Newberry and W. W. McClellan, in appraising the damage done to the car of J. R. Ketchey, make a gross mistake in appraising the same at $500.00? Answer: Yes.

"(2) What amount of damage was done to the car of J. R. Ketchey by the fire burning the same? Answer: $874.00."

The court found upon the uncontroverted evidence that the intervener, Ked Wallace, held a lien on said car for the sum of $641.50. He rendered judgment in accordance with the verdict, setting aside the award of the appraisers and properly apportioning the recovery between appellee and intervener.

Opinion.

Appellant assigns as error the action of the court in overruling its objection to the issues submitted to the jury for determination because the court, neither in framing the same nor otherwise, placed the burden of proof thereon on appellee. The right of parties litigant to have a proper charge on the burden of proof is a valuable one, and the court erred in overruling said objection. Boswell v. Pannell, 107 Tex. 433, 438, 180 S. W. 593, 595; City of Corsicana v. King (Tex. Civ App.) 3 S.W.(2d) 857, 863, 864 (writ refused); Colvard v. Goodwin (Tex. Civ. App.) 24 S.W. (2d) 786, 793, and authorities there cited; St. L. S. W. Ry. Co. v. Weathersbee (Tex. Civ. App.) 22 S.W.(2d) 986, 987; Houston & T. C. Ry. Co. v. Stevenson (Tex. Com. App.) 29 S. W.(2d) 995, 999.

Appellant assigns as error the action of the court in overruling its objection to the submission of the first special issue. The ground of such objection was that there was neither pleading nor evidence to warrant such submission. Appellee pleaded that McClellan was intentionally unfair and purposely undervalued the car, that Newberry failed intentionally to value the car as it existed immediately before the fire, and that the award was grossly inadequate. He did not allege in specific terms that such award was the result of a gross mistake on the part of the appraisers, or either of them. Since the cause will be remanded, appellee will have an opportunity to amend his pleadings. By the very terms of the stipulation in the policy...