Mason v. Fidelity Phenix Ins. Co.
| Decision Date | 21 January 1924 |
| Docket Number | 14726,14727 |
| Citation | 258 S.W. 759 |
| Parties | MASON v. FIDELITY PHENIX INS. CO. SAME v. AETNA INS. CO |
| Court | Kansas Court of Appeals |
NOT TO BE OFFICIALLY PUBLISHED.
Rehearing Denied February 11, 1924.
Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge. Actions by D. H. Mason against the Fidelity Phenix Insurance Company and the AEtna Insurance Company, respectively. Judgment for plaintiff, and defendants appeal.
Affirmed.
John C Leopard & Son, of Gallatin, and Crow & Newman, of Kansas City, for appellants.
Davis & Ashby, of Chillicothe, for respondent.
Plaintiff owned a brick business building the town of Hickory, in Daviess county, Mo., on which he had two policies of insurance, one in the Fidelity Phenix Insurance Company and the other with the AEtna Insurance Company. On July 2, 1921, during the existence of these policies, a fire occurred which caused extensive damage to the property, but there was not a total destruction of the building. On November 10, 1921, he instituted a suit on each policy to recover the loss sustained, according to the respective defendants' liability. By agreement the cases were tried together as though they were but one suit, two verdicts, however, being returned, two judgments rendered, and two appeals were taken; but they have been argued and submitted as one case, and hence will be considered and disposed of in one opinion, the question for consideration in each case being identical and depending upon the same state of facts.
Proofs of loss were duly made; the adjuster for each company came and viewed the building. As the AEtna Insurance Company's policy was only half as large as the other company's policy, the adjuster for the former told plaintiff he would leave the whole matter of adjustment with the latter's adjuster, a Mr. Henry of Kansas City. Plaintiff and Henry disagreed as to the amount of the loss, Henry making an offer which plaintiff would not accept, and thereupon it was agreed that an appraisement be had in accordance with the terms of the policies, each of which contained the following arbitration clause:
"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 sole question involved in these appeals is whether or not, in view of the above provision, plaintiff is entitled to maintain these suits, or is to blame for the fact that no appraisement was had under such policy provision, so that he should not be allowed to recover.
At the close of plaintiff's evidence, and again at the close of all the evidence, each of the defendants demurred, but the demurrers were overruled. The cases were submitted to the jury without any instructions save as to form of the verdicts in the event the jury found for plaintiff. The jury returned a verdict against the Fidelity Phenix Insurance Company for $ 950, and against the AEtna Insurance Company for $ 475. Judgments were rendered thereon, and defendants appealed as heretofore stated.
It seems that plaintiff selected as his appraiser one T. V. Ashcroft, a general contractor of 15 years' experience in the building business, and who lived at Trenton, the county seat of Grundy county, about six miles distant from Hickory. Henry, the adjuster, selected Mr. Pelletier, living in Kansas City, as the company's appraiser. The latter came to Hickory, and he and Ashcroft met there for the purpose of inspecting and appraising the damage As defendants offered no oral testimony, we state as facts the substance of the testimony as given by plaintiff's witnesses.
Pelletier wrote up a paper for Ashcroft to sign, which stated that the latter would appraise the building according to law, which he had Ashcroft to sign, and then swore him to it, telling Ashcroft he would have to swear him, and then they two would appoint a third man. After this was done, Pelletier told Ashcroft, "There is nobody around here capable," and they two would go ahead and do it. Ashcroft agreed, and they started at it, but Ashcroft says Pelletier wanted to do it all himself, and seemed to expect that he would do all the adjusting himself and put down all the figures, and that all Ashcroft would have to do would be to sign. Ashcroft allowing Pelletier to have his own way, agreed to an appraisement in this way of a part of the damage, and agreed that this part of the damage amounted to about $ 700, but he disagreed as to the damage to the walls and the foundation, Ashcroft wanting to allow $ 551 damage on the walls and $ 50 to the foundation, while Pelletier would allow only $ 75 on the wall and nothing on the foundation, nor anything for the roof, nor for painting and papering. Their difference amounted to about $ 800. They then talked about selecting an umpire. Something was said about capable men being found in Trenton from which an umpire could be selected. Pelletier said he would write Ashcroft later, and afterwards did so, suggesting names of three men living in Kansas City, St. Joseph, and Hamilton, respectively, none of whom Ashcroft knew. The latter wrote Pelletier saying he did not know the men and did not have the time to investigate them, and suggested in turn the names of four men, two of them being contractors, one of whom lived in Trenton and the other in Princeton (the latter town being 26 miles from Hickory), and the other two men being managers of lumber yards, one living in Princeton and the other in Trenton. To this Pelletier replied in about 10 days, telling Ashcroft who the men he had named were, and suggesting that Ashcroft investigate the men he had selected and let him know so there would be as little delay as possible. About a week later Pelletier wrote saying he had investigated as to three of the men suggested by Ashcroft, but in his judgment they were not competent or qualified to act as umpire; that he was investigating the fourth, and would let him know later. Nothing further was done, however, and plaintiff, after waiting almost two months from that time, went to Kansas City and interviewed Mr. Henry, the adjuster. Plaintiff told him he had come down to try to settle with him. Henry told plaintiff his estimate was too high. Plaintiff replied that he had done what the adjuster had told him to do, he had gotten the best man he could find to say what the loss was, but "you say it is too much." The adjuster then said he "wouldn't give any more at all" than he had theretofore...
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