Lance v. Royal Ins. Co., Ltd.

• Decision Date: 27 February 1924
• Docket Number: No. 3415.,3415.
• Parties: LANCE v. ROYAL INS. CO., Ltd.
• Court: Missouri Court of Appeals

259 S.W. 535

LANCE v. ROYAL INS. CO., Ltd.

No. 3415.

Springfield Court of Appeals, Missouri.

February 27, 1924.

Appeal from Circuit Court, Oregon County; E. P. Dorris, Judge.

Action by C. F. Lance against the Royal Insurance Company, Ltd. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

Lamar & Lamar and Hiett & Impey, all of Houston, for appellant.

J. D. Wallace, of Alton, for respondent.

COX, P. J.

Action upon a fire insurance policy covering a stock of goods and fixtures. Verdict and judgment for plaintiff for $2,200, and defendant appealed.

The petition was in the usual form, and asked judgment for the full amount of the policy. The answer admitted issuing the policy, then pleaded as a defense a failure on part of plaintiff to comply with the iron safe cause in the policy; failure to furnish proofs of loss; large depreciation in the value of the stock of goods between the date of the policy and the date of the fire; that there was a disagreement between plaintiff and defendant as to the amount of plaintiff's loss; and that no request for appraisement of the amount of the loss had been made by plaintiff, and therefore his suit was prematurely brought and should abate. No reply was filed, but no advantage is sought in this court on that account.

The disposition of this case in this court depends upon the effect to be given to the provision in the policy for an appraisal of the amount of the loss. The material part of that provision is as follows:

"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 difference to the umpire, and the award in writing of any two small determine the amount of such loss."

No request for appraisement of the amount of the loss was made, and appellant contends that there was a disagreement as to the amount of the loss occasioned by the destruction of the stock of goods, and that as to that item the suit was prematurely brought, and recovery should be limited to $200, the amount for which the fixtures were insured. At the close of plaintiff's case, defendant asked the following instruction:

"The court instructs the jury that under the pleadings and the evidence the plaintiff is not entitled to recover except as to the item of $200 for fixtures, and your finding should be for the defendant."

This instruction was refused. The whole case was submitted to the jury, who found for plaintiff for the full amount of the policy.

A provision in an insurance policy for the amount of the loss to be ascertained by appraisers in case of disagreement in relation thereto is binding and enforceable, and must be complied with before a right of action accrues to the insured. Murphy v. Mercantile Co., 61 Mo. App. 323; McNees v. Insurance Co., 69 Mo. App. 232; Gragg & Gragg v. Insurance Co., 132 Mo. App. 405, 111 S. W. 1184; Ball v. Royal Ins. Co., 129 Mo. App. 34, 107 S. W. 1097; Security Prtg. Co. v. Connecticut Fire Ins. Co. of Hartford, Conn., 209 Mo. App. 422, 439, 240 S. W. 263; Dworkin v. Caledonian Ins. Co., 285 Mo. 342, 226 S. W. 846.

The evidence in relation to a disagreement as to the amount of the loss is found in the testimony of plaintiff as follows:

"After the loss I wanted the...