National Fire Ins. Co. v. O'Bryan

• Decision Date: 29 April 1905
• Citation: 87 S.W. 129
• Parties: NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. O'BRYAN et al.
• Court: Arkansas Supreme Court

Page 129

87 S.W. 129

NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. O'BRYAN et al.

Supreme Court of Arkansas.

April 29, 1905.

Appeal from Circuit Court, Garland County; Alexander M. Duffie, Judge.

Action by M. L. O'Bryan and another against the National Fire Insurance Company of Hartford, Conn. From a judgment for plaintiffs, defendant appeals. Affirmed.

This was an action on a fire insurance policy, and the insured, the Misses O'Bryan, recovered. The company, after the fire, called into operation the appraisement clause of the policy. The insured selected T. W. Gibbs as appraiser, and the company selected Beattie, and an agreement was drawn and signed by the company, but it was not consummated. Gibbs made an estimate of the injury to the building at the instance of Charles O'Bryan, the brother and representative of the Misses O'Bryan, and was paid for his services. This was prior to his selection as appraiser. Beattie, the other appraiser in the unconsummated written submission, had made a similar estimate at the instance of the company, which differed in amount but slightly from Gibbs'. After the failure of this agreement, the insured, when called upon to name an appraiser under the terms of the policy, again named Gibbs, and then the company objected to him as not being "competent and disinterested." The insured insisted on Gibbs, and the company would not accept him. Gibbs was a bidder with several other contractors for the erection of four houses to be built by Charles O'Bryan, and was the lowest bidder, and got the contract and built the houses. At the time he was nominated as appraiser he was a prospective bidder. He was an experienced contractor and builder.

The clause in the policy in question 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 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 appraisers respectively selected by them and shall bear equally the expenses of the appraisal and umpire."

The court instructed the jury as follows:

"(1) If you find from the evidence that the plaintiffs, upon the demand of the defendant for an appraisement of the loss under the provisions of the policy, notified defendant that they would comply with said demand, and thereupon named T. W. Gibbs as the appraiser for them, and that said Gibbs was competent and disinterested, and that the plaintiffs were at all times ready to proceed with the appraisement with Gibbs as such appraiser, and defendant refused to proceed with such appraiser, then you will find that plaintiffs have complied with the provisions of the policy as to the appraisement.

"(2) The mere fact that T. W. Gibbs knew the premises and had made an estimate of its value did not of itself render him incompetent or disqualified to act as an appraiser, under the provisions of the policy."

The court refused to give the following instruction requested by the company:

"(7) If you believe from the evidence that T. W. Gibbs, the person offered as an appraiser, had already made a computation of the loss at the request of the assured, then the court tells you that he was not a disinterested person within the meaning of the policy, and that the defendant had the right to decline to agree to said person as one of the appraisers."

The court gave, at request of the company, the following instruction:

"(2) You are instructed that defendant had the right to insist upon a competent and disinterested appraiser being chosen by plaintiffs, and to object to one if he was incompetent or interested; and that it devolved upon plaintiffs to appoint some person who was competent and disinterested. If, therefore, you find from the evidence that defendant offered as their appraiser a person who was incompetent or interested within the meaning of those terms explained to you, and you find that defendant objected to him on either of those grounds, and that plaintiffs refused or failed to choose another person as an appraiser who was competent and disinterested, and thus proceed to comply with said provision as to appraisal, you will find for the defendant."

Ashley Cockrill, for appellant. Wood & Henderson, for appellees.

HILL, C. J. (after stating the facts).

The proper construction to place on the term "competent and disinterested appraiser," within the meaning of the appraisal clause of a standard fire insurance policy, is the sole question presented to the court on this appeal by the appellant.

The appellant contends that, if the person offered as appraiser had already made a computation of the loss at the request of the insured, he is not a disinterested appraiser. The argument is that he must come to the discharge of his duties without preconceived opinions, as well as without bias and prejudice. The appellees contend that appraisers are not selected like jurors, but their experience and information of the subject-matter of the appraisal is a qualification rather than a disqualification. The authorities are practically uniform in holding that the question whether the selected person is "competent and disinterested" is a question for the jury. Bishop v. Ag. Ins. Co. (N. Y.) 29 N. E. 844; Bradshaw v. Ag. Ins. Co., 137 N. Y. 137, 32 N. E. 1055; Bullman v. Ins. Co., 159 Mass. 118, 34 N. E. 169; Ulrig v. Ins. Co. (N. Y.) 4 N. E. 745; Bangor Sav. Bank v. Ins. Co. (Me.) 26 Atl. 991, 20 L. R. A. 651, 35 Am. St. Rep. 341; Meyerson v. Hartford Ins. Co. (Sup.) 39 N. Y. Supp. 329; 4 Joyce on Ins. § 3242. Therefore it follows that the court was correct in submitting this question to the jury.

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