Kent & Purdy Paint Co. v. Ætna Ins. Co.

• Decision Date: 02 April 1912
• Citation: 146 S.W. 78
• Parties: KENT & PURDY PAINT CO. v. ÆTNA INS. CO.
• Court: Missouri Court of Appeals

146 S.W. 78

KENT & PURDY PAINT CO. v. ÆTNA INS. CO.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

1. PLEADING (§ 403)—PETITION—SUFFICIENCY—AIDER BY ANSWER.

Omission of essential averments in a petition is cured by allegations of the answer, if the latter do not constitute new matter, which is put in issue by a reply.

2. INSURANCE (§ 574)—ACTION ON POLICY— CROSS-BILL—RIGHT TO FILE.

In an action on a fire policy to recover the amount of an appraisement made under the policy by outsiders on the parties failing to agree, a demurrer was properly sustained to a cross-bill which set up misconduct, etc., of the appraisers; that matter being matter of defense at law, and properly presented by answer.

3. INSURANCE (§ 574)—ACTION ON POLICY—DEFENSES—SALE OF INJURED PROPERTY BY INSURED.

In an action on a fire policy, it was no objection to recovery that plaintiff sold the remaining property after the appraisal, though the policy gave insurer the right to take the property at its appraised value, where insurer repudiated the appraisal, thereby losing such option.

4. INSURANCE (§ 646)—ACTION ON FIRE POLICY — APPRAISEMENT — REGULARITY — BURDEN OF PROOF.

In an action on a fire policy to recover the amount of an appraisement made under the policy by outsiders, after the parties failed to agree, the burden was on insurer to show that the appraisers and umpire proceeded improperly.

5. APPEAL AND ERROR (§ 1008) — REVIEW— FINDINGS—CONCLUSIVENESS.

A finding of the trial court, sustained by evidence, is conclusive on appeal, in the absence of a showing of arbitrary action under passion or prejudice.

6. INSURANCE (§ 572) — APPRAISEMENT OF PROPERTY—REQUIREMENT.

The clause in a fire policy, requiring appraisers, after choosing an umpire, to appraise a loss, does not require them to view the damaged property together, nor forbid them doing it separately.

7. INSURANCE (§ 665) — ACTION ON FIRE POLICY — APPRAISEMENT — SUBMISSION OF DIFFERENCES — EVIDENCE — SUFFICIENCY.

In an action on a fire policy to recover the amount of an appraisement made under the policy by outsiders after the parties failed to agree, evidence held to warrant a finding that the appraisers submitted "their differences" to an umpire as required by the policy.

8. INSURANCE (§ 572)—FIRE POLICIES—APPRAISEMENT OF LOSS.

A clause of a fire policy providing for appraisement of any loss by two appraisers who were required to submit any differences to an umpire does not require or authorize the umpire to hear testimony; the appraisement being necessarily made by the appraisers and the umpire.

9. INSURANCE (§ 572)—FIRE POLICIES—APPRAISEMENT OF LOSS.

On submission to the umpire of differences of the appraisers, it was unnecessary to give notice to the parties themselves or to give them opportunity to be heard; it being sufficient that the appraisers have notice.

10. INSURANCE (§ 572)—FIRE POLICIES—APPRAISEMENT OF LOSS.

An appraisement made under the clause by one appraiser and the umpire is not vitiated by failure of the other appraiser to attend before the umpire when notified to do so.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by the Kent & Purdy Paint Company against the Ætna Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a suit upon a fire insurance policy, the plaintiff seeking to recover $1,660.81, the amount of damage as fixed by an appraisal alleged to have been made in pursuance of the terms of the policy. A trial being had, the cause was submitted to the trial court sitting as a jury, the plaintiff had judgment for the amount sued for and interest, and the defendant has appealed.

The pleadings, so far as we need notice them, were, in substance, as follows: The petition states that defendant by its policy insured the plaintiff's personal property against fire for $2,000, and while the policy was in force the property was damaged by fire; that the total amount of insurance then on the property was $7,400; that, after the fire, the parties tried to agree upon the amount of the damage, but were unable to do so, whereupon each selected an appraiser, and the appraisers selected a competent and disinterested umpire; that thereupon the appraisers tried to agree upon the damage and, being unable to do so, submitted their differences to the umpire; that thereupon two of the three made an award in writing determining the amount of the damage to be $6,145; that the portion of said damage chargeable to defendant under its policy was $1,660.81, etc. The defendant filed an "answer and cross-bill," wherein it admitted the issuance of the policy and its being in force, as alleged, but stated that it contained a provision for ascertaining or estimating the damage etc., as follows: "Said ascertainment or estimate shall be made by the insured, and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild or replace the property lost or damaged, with other of like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described. * * * In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first 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 in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire. * * * No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements."

Defendant also admits that the property was damaged by fire, but avers that the damage did not exceed $1,000. Defendant then avers: Disagreement between the parties as to the amount of damage and the selection of appraisers in pursuance of the provisions of the policy, the plaintiff selecting S. B. Way, and the defendant H. S. Albrecht, and in that connection making an agreement embodying the following: "That S. B. Way and H. S. Albrecht shall appraise and estimate, by items and in detail, the sound value of, and the loss and damage to, the property, * * * stating the sound value and loss and damage separately. These two appraisers shall first select a competent and disinterested umpire, and if the two appraisers fail to agree they shall submit their differences to the umpire and the award in writing of any two shall determine the amount of such sound value and loss and damage, and shall be binding upon both parties to this agreement. It is expressly understood that this agreement and appraisement is for the purpose only of ascertaining and fixing the amount of said sound value and loss and damage to the property hereinafter described, and shall not determine, waive, or invalidate any other right or rights of either party to this agreement." That the two appraisers selected William Gruendler as umpire and then started in to appraise, but, before they had examined into much of the property, they found themselves unable to agree as far as they had gone, and separated without doing more. That thereafter, without notice to Appraiser Albrecht or defendant as to when or where anything further would be done, Appraiser Way and Umpire Gruendler signed and returned the pretended award spoken of in the petition. That the pretended award was arrived at without the defendant or Appraiser Albrecht being present or heard or presenting testimony, or having notice or opportunity to do so. That the appraisers and the umpire never met or heard or considered any matters as a board, or together, or in their official capacity. That the appraisers never submitted their differences to the umpire for his decision, and never went together to the place where the damaged property was and never examined the same. That the umpire refused to allow them or either of them to go and examine or estimate the damage with him and never allowed them to submit their differences to him. That Appraiser Way and Umpire Gruendler arbitrarily and by mere guesswork arrived at the amount of the pretended award without having heard or allowed testimony and without appraising or estimating by items, or in detail, and without investigation or ascertainment. Defendant admits refusing to pay plaintiff any sum whatever, and alleges that, after the pretended award was returned, it repudiated it, and refused to be bound by it. It also alleges that the plaintiff wrongfully moved and disposed of the damaged property contrary to the terms of the policy. Averring, then, that it had no adequate remedy at law, defendant prayed that the pretended award be vacated, etc. Plaintiff demurred to this cross-bill for the reason that it did not state facts sufficient to constitute a cause of action, or to entitle the defendant to equitable relief, which demurrer the trial court sustained. Thereupon, the defendant filed an answer, stating as a defense all the facts and circumstances which it had stated in its "answer and cross-bi...