Maryland Casualty Co. v. Mayfield

• Decision Date: 09 June 1932
• Docket Number: 6 Div. 58.
• Citation: 225 Ala. 449,143 So. 465
• Parties: MARYLAND CASUALTY CO. v. MAYFIELD.
• Court: Alabama Supreme Court

143 So. 465

225 Ala. 449

MARYLAND CASUALTY CO. v. MAYFIELD.

6 Div. 58.

Supreme Court of Alabama

June 9, 1932

Rehearing Denied Oct. 13, 1932.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action on a policy of automobile insurance by Sarah Mayfield against the Maryland Casualty Company. From a judgment for plaintiff defendant appeals.

Affirmed.

T. B Ward and J. M. Ward, both of Tuscaloosa, for appellant.

Henry J. Mayfield and A. V. Van de Graaff, both of Tuscaloosa, for appellee.

BROWN J.

This action is by the appellee against the appellant on a policy contract of insurance, insuring the plaintiff against damages to her "1930 Packard Sedan Automobile," resulting from "accidental upsets" and other perils, not here material.

The defendant, to the complaint consisting of three counts, filed five pleas in abatement, praying that "the summons and complaint in this case be quashed" for that the policy contract contained the following provision, after stating the coverage: "Provided however, that the Company's liability for such collision loss or damage, or for the cost of suitable repairs or replacements shall not exceed the actual cash value of the property damaged or destroyed at the time of the collision, less the deduction, if any, applicable thereto. The amount of such loss or damage, or the nature and extent of the damage requiring repair or replacement, less such deduction as aforesaid, shall be determined between the parties hereto, if possible, otherwise by two appraisers, one to be chosen by the Assured and one by the Company. The two appraisers so chosen, if they are not able to agree, shall elect a third and the award in writing of any two of the appraisers shall determine, (1) the nature and extent of the damage requiring repair or replacement; (2) the amount of the loss in money. The Company may accomplish such repair or replacement so determined by such means as it may elect, or at its option pay in money the amount fixed by the appraisers." (Italics supplied.)

Plea 1 further averred that the matter set up in the complaint constituted a dispute arising out of the contract; that plaintiff did not first submit her dispute or her cause of action to the appraisers as provided for in the contract; that defendant notified plaintiff that it desired such arbitration and has always been ready and willing "to arbitrate said matters or dispute or cause of action arising out of said contract and in the manner provided for in said contract." (Italics supplied.)

"The defendant further avers that this Court is without jurisdiction of said matters."

Plea 2, after setting out the nature of the contract and coverage, and the clause for arbitration, further averred: "That said matters set out in the plaintiff's complaint and each count thereof constitute a dispute or a cause of action arising out of the terms or provisions of said contract. The defendant further avers that the aforesaid provision for arbitration was entered into between the parties for the purpose of settling any dispute which might arise under said contract without recourse to any action at law, and that before the filing of this suit the plaintiff failed or refused to arbitrate said dispute or cause of action." (Italics supplied.) Plea 3 is in substance the same as plea 2, with the added averments: "That the plaintiff appointed one appraiser or arbitrator and the defendant appointed one appraiser or arbitrator in pursuance of said contract and the two appraisers or arbitrators so appointed were unable to agree upon the damages of the plaintiff. *** That the appraiser or arbitrator so appointed by the plaintiff wilfully refused or failed to cooperate with the appraiser or arbitrator appointed by the defendant in that he did not agree upon some third person to be selected as one of the appraisers or arbitrators for said dispute or cause of action between the plaintiff and the defendant." (Italics supplied.)

Plea 4, in addition to the averments substantially embodied in plea 1, alleges that plaintiff appointed one Jones, who was not qualified for the reason that he was related by marriage to plaintiff " within the degree of kinship prohibited by law." (Italics supplied.)

Plea 5, in addition to the general averments in the other pleas, alleged that Jones, who was appointed by plaintiff, "was not competent or qualified to act as such appraiser or arbitrator in that he was not an automobile mechanic and neither had he any experience in repairing automobiles or estimating damages to automobiles of the character and type involved in this suit." (Italics supplied.)

The court sustained demurrers to these pleas, as appears from the judgment entry, but the demurrers do not appear in the record before us. Therefore, the presumption will be indulged in favor of this ruling, that the demurrer pointed out all the defects appearing on the face of the pleas. Capital Security Co. v. Owen, 196 Ala. 385, 72 So. 8; Miller v. Mutual Grocery Co., 214 Ala. 62, 106 So. 396; Pell City Manufacturing Co. v. Cosper, 172 Ala. 532, 55 So. 214.

Taking the averments of defendant's pleas 1, 2 and 3 most strongly against the pleader, the stipulation in the contract providing for the arbitration included, not only the quantum of the plaintiff's damages, but her right of action-the cause of action-and so construed the stipulation is void as against public policy. Western...