Perry v. Greenwich Ins. Co

• Decision Date: 21 February 1905
• Parties: PERRY v. GREENWICH INS. CO.
• Court: North Carolina Supreme Court

49 S.E. 889

137 N.C. 402

PERRY

v.GREENWICH INS. CO.

Supreme Court of North Carolina.

Feb. 21, 1905.

ARBITRATION—INADEQUACY op AWARD — SUFFICIENCY of EVIDENCE—INSURANCE— WAIVING PROOF OF LOSS.

1. All that is required to justify the setting aside of an award of arbitrators on the ground of fraud, bias or undue influence is that the evidence satisfies the jury of the truth of the allegations in the complaint.

2. An agreement to arbitrate the loss under a policy of insurance is a waiver of the want of due proofs of loss.

3. Where the verdict of a jury of $750 for loss under a policy of insurance is supported by sufficient evidence, an award of $73.50 by arbitrators for the same loss is so grossly inadequate as to require setting the same aside.

Appeal from Superior Court, Halifax County; Moore, Judge.

Action by E. A. Perry against the Greenwich Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Busbee & Busbee, for appellant.

E. L. Travis, Claude Kitchin, W. E. Daniel, and Howard Alston, for appellee.

BROWN, J. This is a civil action to recover a loss upon a policy of insurance on account of damage to plaintiff's dwelling by lightning, and to set aside an award of arbitrators because of fraud, corruption, bias, and undue influence. These issues, which were submitted to and answered by the jury, sufficiently disclose the nature of the action: "(1) Has there been an arbitrament and award as to the amount of damages to which plaintiff is entitled under the insurance policy attached to the complaint? Yes. (2) Was the appraiser Ellington, at the time of the alleged arbitration, disinterested? No. (3) Was "the appraiser Faucette unduly, fraudulently, and corruptly influenced and controlled in the interest of the defendant by said Ellington? Yes. (4) Were said appraisers partial to and strongly biased and prejudiced in favor of the defendant? Yes. (5) Did plaintiff file with defendant notice and proof of loss as required by said policy? No. (6) Did defendant waive notice and proof of loss? Yes. (7) What were the damages done by lightning and fire to the property included in the policy? $750, with interest from the time it was due until paid." The defendant appealed from the judgment rendered, and assigned 18 exceptions in the record as error.

Exceptions 1, 2, and 3 relate to the admission of evidence, and, in our opinion, are without merit. Boggan v. Home, 97 N. C 270, 2 S. E. 224. The contentions of defendant (appellant), as summarized from the numerous exceptions, are: (1) That in this case the plaintiff must establish the allegations of the complaint by clear, strong, and convincing testimony before the award can be set aside. (2) That, it being admitted that no proof of loss has been furnished defendant by plaintiff, he cannot maintain this action. (3) That there is no evidence in the record sufficient to go to the jury upon the issues 2, 3, and 4 relating to the fraud, interest, and bias of the arbitrators.

The first contention cannot be sustained. In this state the degree or intensity of proof required in civil actions has been divided into two classifications only: (1) Those facts which must be established by a preponderance of the evidence or to the satisfaction of the jury. A jury is not justified in finding any fact unless the evidence is sufficient to satisfy their minds of its truth, or, what is equivalent and practically the same thing, creates in their minds a belief that the fact alleged is true. This we take to be substantially what is said by Chief Justice Pearson in Lee v. Pearce, 68 N. C. 77. (2) Those facts which must be established to the satisfaction of the jury by clear, cogent, and convincing proof. Ely v. Early, 94 N. C. 1. We take those to be the two classifications of evidence applicable to civil actions, as settled by numerous decisions of this court. Lee v. Pearce, supra, and Harding v. Long, 103 N. C. 1, 9 S. E. 445, 14 Am. St. Rep. 775, represent the first named class, and Ely v. Early, supra, and many other similar cases, represent the second. That class of cases wherein it is sought to set aside deeds, decrees of judicial tribunals, and awards of arbitrators upon the ground of fraud, belongs to the first class. "In order to establish fraud, it is not necessary that direct affirmative or positive proof of fraud be given. In matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required. Like much of human knowledge, fraud may be inferred from facts established. This means no more than that the proof must create a belief, and not merely a suspicion." Kerr on Frand & Mistake, pp. 384, 385. This subject is discussed with great clearness and learning by Avery, J., in Harding v. Long, supra, which case is cited and approved in many subsequent opinions. We would be but "threshing old straw" to discuss this contention of the defendant further.

The second contention cannot be maintained. We admit that it is settled law that an action for damages for loss on a "standard" fire insurance policy cannot be maintained unless it is alleged and proved that proof of loss has been made before action brought, in accordance with the terms of the policy. But proof of loss can be waived. We are of opinion that it has been, in this case, by theagreement to arbitrate, and that his honor was correct in so charging the jury. It has been...