Montgomery v. Am. Cent. Ins. Co. of St. Louis

• Court: Wisconsin Supreme Court
• Writing for the Court: CASSODAY
• Citation: Montgomery v. Am. Cent. Ins. Co. of St. Louis, 108 Wis. 146, 84 N.W. 175 (Wis. 1900)
• Decision Date: 16 November 1900
• Parties: MONTGOMERY v. AMERICAN CENT. INS. CO. OF ST. LOUIS.

108 Wis. 146

84 N.W. 175

MONTGOMERY

v.AMERICAN CENT. INS. CO. OF ST. LOUIS.

Supreme Court of Wisconsin.

Nov. 16, 1900.

Appeal from circuit court, Brown county; Samuel D. Hastings, Jr., Judge.

Action by Clinton W. Montgomery, executor, against the American Central Insurance Company of St. Louis. From a judgment against defendant on offer, plaintiff appeals. Modified as to costs and affirmed.Wigman, Martin & Martin, for appellant.

Van Dyke & Van Dyke & Carter, for respondent.

CASSODAY, C. J.

It appears from the record: That at the times mentioned the plaintiff's testatrix, Mollie Montgomery, owned two buildings at Iron Mountain, Mich.,--one a frame building and the other a brick building. That January 11, 1898, she held two policies of insurance against loss by fire on the frame building, which she had procured within the year immediately preceding,--one of $500, in the Northern Assurance Company of London, and the other of $500 in this defendant, American Central Insurance Company of St. Louis; and that each of such policies permitted concurrent insurance to the amount of $2,000. That she also held at the time mentioned four policies of insurance against loss by fire on the brick building, which she had procured within the year immediately preceding,--one for $1,000 in the Providence & Washington Insurance Company of Rhode Island, another for $1,000 in the Hanover Fire Insurance Company of New York, another for $1,000 in the Scottish Union & National Insurance Company of Edinburgh, and another for $1,000 in the defendant, American Central Insurance Company of St. Louis; and that each of such four policies permitted concurrent insurance to the amount of $5,000. That January 11, 1898, such buildings, and each of them, were burned by fire, if not destroyed. That the several policies, particularly the two issued by the defendant, American Central Insurance Company, contained this provision: “In the event of disagreement as to the amount of loss the same shall 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 be prima facie evidence of the amount of such loss.” That on or about February 7, 1898, the defendant's adjuster served notice and demand in writing on the testatrix, the body of which is as follows: “As a result of our disagreement as to the loss and damage to your brick and frame buildings, and which was caused by the fire of January 11, 1898, I hereby demand an appraisal under such policies for such companies as I represent as adjuster, and such as are particularly inserted in the inclosed blanks. I inclose you herewith blank appraisal agreements, with duplicates, for both buildings, duly signed by myself as such adjuster, and herewith request that you sign and insert the name of your appraiser, keeping the duplicates and returning the originals to Mr. R. T. Miller, who delivers this letter with said blanks to you. A prompt response will facilitate the early taking up of the adjustment. Very truly yours, J. C. Ragsdale, Adjuster.” That the blank appraisal agreements so inclosed between the testatrix and the defendant bore the same date, and were signed on behalf of the defendant and three others of such companies, and were signed by the plaintiff's testatrix, and returned to the defendant March 5, 1898; and the agreement as to the brick building is as follows: “Agreement for Submission to Appraisers. It is hereby agreed by and between Mrs. Mollie Montgomery, party of the first part, and the American Central Insurance Company of St. Louis, and such other companies as shall sign and become parties to this agreement, party of the second part, that Robert Meyer and Thomas E. Pugh (and whenever either party demand it the two so chosen shall select a third person to act with them in case of disagreement) shall appraise the sound value of, and the loss and damage by fire of January 11, 1898, to, the property hereinafter named; and said persons so selected shall form a board of appraisers; and the award under oath of any two of such appraisers shall be binding and conclusive as to the sound value of, and loss and damage to, such property, and shall form a part of the preliminary proofs of loss required by said American Central Insurance Company of St. Louis, Mo., under its policy No. 693,130, and also part of the proof of loss required by the policies of the said several other companies. The property upon which said sound value and loss and damage is to be appraised is to wit: $1,000 on her two-story brick, metalroof building, occupied on first floor for store purposes, and on second floor as dwelling by assured, situated on lot (10) of block (11), Original Plat, city of Iron Mountain, Mich.; $5,000 total concurrent insurance, including this, permitted. Attached to and forming part of the policy No. 693,130, American Central Ins. Co. McEnaney & Miller, Agents. It is understood and agreed that said appraisers shall take into consideration the age, condition, and location of said property, and all other matters affecting the cash value thereof, at the time of said fire; and that they may adjourn their meetings from time to time, and to such place or places, as they may agree upon, to the end that they may arrive at a just and impartial award herein. Each party to pay its own appraiser and one-half of the expenses of such third person. It is understood and agreed that this agreement for an appraisal, and the appraisal and award herein, shall not be construed under any circumstances as an admission of the validity of the said policies of said insurance companies on the property named, nor of the liability of said companies thereunder, nor as a waiver of any of the conditions of said policies of said companies. Dated and signed at Milwaukee this 7th day of February, 1898. American Central Insurance Co. J. C. Ragsdale, Adjuster. [Seal.] Scottish Union & National Ins. Co. J. C. Ragsdale, Adjuster. [Seal.] Hanover Fire Insurance Co. J. C. Ragsdale, Adjuster. [Seal.] Providence Washington Insurance Co. J. C. Ragsdale, Adjuster. [Seal.] Mollie Montgomery. [Seal.]” That the appraisers so agreed upon took the requisite oath March 17, 1898. That on the same day the two appraisers so appointed by an instrument in writing “selected William H. Sweet as umpire.” That thereupon such appraisers and umpire made their award in writing as to the brick building, as follows: “Award and Return of Appraisers. To the American Central Insurance Company of St. Louis and the Several Other Companies in Interest: Having carefully and conscientiously examined, estimated, and appraised the sound value of and the loss and damage by fire of the 11th day of January, 1898, to the property belonging to Mrs. Mollie Montgomery agreeably to the foregoing appointment and declaration, we hereby report that we have, according to the best of our knowledge, skill, and judgment, estimated, appraised, and determined the sound value to be $3,000, and the whole loss and damage to be $2,037.18, more particularly itemized in the schedule attached hereto, and marked ‘A.’ Dated and signed at Iron Mountain, this 19th day of March, 1898. Thomas E. Pugh. [Seal.] Robert Meyer. [[[Seal.] W. H. Sweet. [Seal.]” That the blank appraisal agreement as to the frame building was substantially the same as the other, and agreed upon the same appraisers. That such appraisers took the requisite oath March 17, 1898, and by an instrument in writing “selected William H. Sweet as umpire” on the same day. That thereupon such appraisers and umpire made their award in writing as to the frame building, as follows: “Award and Return of Appraisers. To the American Central Insurance Company of St. Louis and the Several Other Companies in Interest: Having carefully and conscientiously examined, estimated, and appraised the sound value of and the loss and damage by fire of the 11th day of January, 1898, to the property belonging to Mrs. Mollie Montgomery agreeably to the foregoing appointment and declaration, we hereby report that we have, according to the best of our knowledge, skill, and judgment, estimated, appraised, and determined the sound value to be $1,567.41, and the whole loss and damage to be $1,175.56, more particularly itemized in the schedule attached hereto, and marked ‘A.’ Dated and signed at Iron Mountain this 19th day of March, 1898. Thomas E. Pugh. [Seal.] Robert Meyer. [Seal.] W. H. Sweet. [[[Seal.]” The plaintiff's testatrix refused to abide by such awards, or either of them, and in July, August, and September, 1898, an action to recover for such loss and damage was commenced by Mollie Montgomery upon each of such policies against the company issuing the same. That such company in each case answered the complaint therein, and, among other things, pleaded such award as conclusively determining the loss and damage to the respective buildings. That such six actions were consolidated pursuant to the statutes (sections 2609a and 2792 Rev. St.). That November 4, 1898, the American Central Insurance Company of St. Louis and the Northern Assurance Company of London, in the action against it on the policy issued by it on the frame building, each served notice on the attorneys for the plaintiff's testatrix, and thereby offered to allow judgment to be taken against it for its proportionate share of such award, to wit, “for $302.75, with costs.” That November 4, 1898, the American Central Insurance Company of St. Louis and the other three companies having issued policies on the brick building each served notice on the attorneys for the plaintiff's testatrix, and thereby offered to allow judgment to be taken...