Orr v. Farmers Mut. Hail Ins. Co. of Mo.

• Decision Date: 21 April 1947
• Docket Number: 39961
• Citation: 201 S.W.2d 952,356 Mo. 372
• Parties: Amos Orr, Appellant, v. Farmers Mutual Hail Insurance Company of Missouri, a Corporation
• Court: Missouri Supreme Court

201 S.W.2d 952

356 Mo. 372

Amos Orr, Appellant, v. Farmers Mutual Hail Insurance Company of Missouri, a Corporation

No. 39961

Supreme Court of Missouri

April 21, 1947

Motion for Rehearing or to Transfer to Banc Overruled May 12, 1947.

Appeal from New Madrid Circuit Court; Hon. Louis H. Schult Judge.

Remanded (with directions).

Edward F. Sharp for appellant.

(1) The plaintiff was entitled to have the jury given an instruction on the qualifications of an arbitrator and such an instruction is not a comment on the evidence. Lanio v Kansas City Pub. Serv. Co., 162 S.W.2d l.c. 864; Jarrett v. St. Francois County Finance Co., 185 S.W.2d l.c. 861; Berthold v. Danz, 27 S.W.2d l.c 451; Stanton v. Jones, 59 S.W.2d l.c. 651; Fleisch v. Insurance Co., 58 Mo.App. l.c. 606; Gray v. Doe Run Lead Co., 53 S.W.2d l.c. 883; Wren v. Chicago, B. & Q. Ry. Co., 44 S.W.2d l.c. 241; O'Neill v. Blase, 94 Mo.App. l.c. 664; Roth v. Roth, 142 S.W.2d 818. (2) The arbitration agreement was in writing and under its express terms was an agreement for a statutory arbitration. Sec. 15234, R.S. 1939; Bridgman v. Bridgman, 23 Mo. 272; Walt v. Huse, 38 Mo. 210; Bunnell v. Reynolds, 205 Mo.App. 654; Dworkin v. Caledonian Ins. Co., 285 Mo. 342; Thatcher Implement Co. v. Brubaker, 193 Mo.App. 627. (3) The arbitrators were sworn as provided for by statute. Sec. 15236, R.S. 1939. (4) The arbitrators refused to follow the statute in making the award and their finding was void. Secs. 15235, 15238, R.S. 1939; Tiffany v. Coffee, 142 Mo.App. 210; Inman v. Keil, 206 S.W. l.c. 404; Redman v. Hay & Grain Co., 209 Mo.App. 685; 6 C.J.S., sec. 203; Blaetz v. National Fire Ins. Co., 293 S.W. l.c. 506. (5) The arbitrator selected by the defendant was disqualified to act because he was a regular employee of defendant and in its pay on the very day he so acted. Schwartzman v. Fire Ins. Co., 318 Mo. 1089; Hyeronimus v. Allison, 52 Mo. 102; Jones v. Orient Ins. Co., 184 Mo.App. l.c. 402; Scholz v. Mills, 176 Mo.App. l.c. 375; Holt v. Williams, 210 Mo.App. l.c. 479. (6) The pretended award of the arbitrators was so grossly inadequate as to show partiality and require that it be set aside. 6 C.J.S., p. 236; Hyeronimus v. Allison, 52 Mo. 102. (7) The policy sued upon was a valued policy under its specific terms in case of a total loss and there being no dispute but what there was a total loss plaintiff was entitled to a preemptory instruction in his favor and hence the giving of plaintiff Instruction P-1, if error was harmless. Daggs v. Orient Ins. Co., 136 Mo. 382; Prudential Ins. Co. v. German Mut. Fire Ins. Assn., 142 S.W.2d 500. (8) The burden is on the complaining party to show that not only was the instruction erroneous but that it was prejudicial. Perry v. Vanmatre, 176 Mo.App. 100; Gray v. Missouri R.P. Co., 64 Mo. l.c. 50; State ex rel. C.R.I. & P. Railway v. Shain, 338 Mo. 217; Phelps Stone Co. v. Norton, 127 Mo.App. l.c. 274; Turner v. Central Hardware Co., 353 Mo. 1194, 186 S.W.2d 603. (9) An instruction requiring finding of essential facts to a verdict in favor of a plaintiff is not a comment on the evidence nor the undue emphasizing of facts required to be found. Stevens v. Kansas City Gas Co., 191 S.W.2d 601; Watson v. St. Joe Coal Mining Co., 331 Mo. 475, 53 S.W.2d l.c. 893; Schnurr v. Perlmutter, 71 S.W.2d 63. (10) The policy under consideration being a "valued policy" fixing the amount of damage in case of total loss the award of the pretended arbitrators was void. Joyce v. St. Paul Ins. Co., 194 S.W. 745; Joyce v. St. Paul Ins. Co. 211 S.W. 390; Patrovic v. Standard Ins. Co., 237 Mo.App. 290, 167 S.W.2d 412; Baker v. Phoenix Assur. Co., 57 Mo.App. 559; Jacobs v. North British & Mercantile Ins. Co., 61 Mo.App. 572; Prather v. Connecticut Fire Ins. Co., 176 S.W. 527, 188 Mo.App. 653.

Alexander, Ausmus & Harris and Ward & Reeves for respondent.

(1) The trial court committed no error in sustaining defendant's motion for new trial on the ground that the court committed error in giving instruction No. P-1. Said instruction was a comment on the evidence and singled out specific parts of the evidence and directed special attention to them. Markland v. Clover Leaf Cas. Co., 209 S.W. 602; Robinson v. Cruzen, 202 S.W. 449; Hoffman v. Hoffman, Exr., 126 Mo. 486; Eckhard v. St. Louis Transit Co., 190 Mo. 593; Kennedy v. Phillips, 5 S.W.2d 33; State ex rel. State Highway Comm. v. Day, 47 S.W.2d 147. (2) Said instruction submitted the question of fraud to the jury when there was no issue or evidence of fraud. Cases cited under (1). (3) Said instruction was harmful and prejudicial. Markland v. Clover Leaf Cas. Co., 209 S.W. 602. (4) The agreement in question is not in the accepted legal sense of the term a submission to arbitration but is merely an agreement to determine the amount of loss by appraisement. Zallee v. Laclede Mutual Fire and Marine Ins. Co., 44 Mo. 530; Dworkin v. Caledonia Ins. Co., 226 S.W. 846; Lance v. Royal Ins. Co., 259 S.W. 535. (5) The agreement in question was a valid agreement for appraisal, is binding on appellant and respondent's motion for new trial should have been sustained. The persons selected to appraise the amount of loss were qualified and there was no showing of improper conduct. Schwartman v. Fire Ins. Co., 318 Mo. 1089. (6) The award of the appraisers was not void because of inadequacy. Secs. 5930, 6183, R.S. Mo. 1939; Kattelmann v. Fire Assn. of Philadelphia, 79 Mo.App. 447; Cox v. Home Ins. Co., 19 S.W.2d 297.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Amos Orr obtained a verdict in the Circuit Court of New Madrid County, Missouri, in the sum of $ 13,333.33 against the defendant, Farmers Mutual Hail Insurance Company of Missouri. The suit was based on an insurance policy insuring Orr's cotton crop against loss by hail. The trial court sustained defendant's motion for a new trial assigning as grounds therefor the giving of an instruction. Plaintiff perfected an appeal to this court.

Respondent filed a motion to dismiss the appeal alleging that appellant failed to make a fair and concise statement of the case, omitted facts and failed to specify pages of the transcript showing evidence in support of the statements made. We have examined the statement carefully and find it sufficient to present the questions to be decided on this appeal. We also find a number of references to pages in the transcript. Perhaps the statement could have been more specific but its deficiencies do not justify a dismissal of the appeal.

Since respondent is of the opinion that appellant's statement is unfair we have concluded to take respondent's statement of facts as our own, adding thereto what we deem necessary. It reads as follows:

"On May 4, 1945, Respondent insured plaintiff's cotton crop consisting of 200 acres against loss by hail not to exceed $ 100 per acre. The policy provided that in the event of loss that 'in case of disagreement either as to whether there is any loss at all or as to the amount of the loss, it shall be settled by arbitration as follows: The Company shall choose an arbitrator and the assured one and the two thus chosen shall select a third and an award signed by all the arbitrators shall be final and binding upon both parties.'

"On or about the night of June 7th and 8th, 1945, a hail storm struck appellant's cotton crop. Sometime after the hailstorm representatives of Respondent called on Appellant and in the discussion of the loss asked appellant if he wanted an arbitration and appellant stated that he did. Several days later an agreement was entered into to adjust the loss by arbitration or appraisement. Pursuant to said agreement appellant selected one person, Respondent selected one person and the two selected a third person.

"About June 26, 1945, the three men so selected came to Appellant's farm and on June 29, 1946, brought in an award of 'No Damage'.

"Appellant introduced evidence that Appellant's cotton crop was to a stand about May 20, 1945, and that the cotton crop was totally destroyed by hail storm on June 8, 1945.

"In connection with the so-called arbitration pursuant to the agreement respondent named one C. I. Hart as its selection, appellant named one L. A. Gilbow and the two selected one W. T. Ballard. Respondent called C. I. Hart to testify. C. I. Hart lives in Phillips Grove, Iowa, never did live in southeast Missouri and is District Manager for a Hybred Corn Company. He had done adjusting for the Respondent's company on a per diem basis and had been doing adjusting for them in Southeast Missouri. The witness testified that he was an independent adjuster and worked for any company that wanted his services, that he was not under a salary with any company and that he adjusted for respondent and other companies on a per diem basis. The witness testified that he was experienced in adjustment work and had received training and schooling along that line. That in his training and schooling he had studied the effect of hail on various crops including cotton crops.

"When the three Hart, Gilbow and Ballard met to determine the amount of damage to plaintiff's cotton crops they did not take any testimony of witnesses and did not notify appellant when they were going to meet.

"The witness Hart states that he and the other two men Gilbow and Ballard inspected Orr Cotton crop and arrived at the conclusion that it had not been damaged by hail.

"L. A. Gilbow testified that when he and Hart and Ballard went to the Orr farm that it was impossible to tell whether or not the cotton crop had been damaged by hail or not. That he didn't agree with the other arbitrators as to the amount of the damages. The witness testified that he signed defendant's exhibit No. 2.

"At the close of all the evidence ...