Providence Washington Ins. Co. v. Farmers El. Co., 5179.
| Decision Date | 17 June 1940 |
| Docket Number | No. 5179.,5179. |
| Citation | 141 S.W.2d 1024 |
| Parties | PROVIDENCE WASHINGTON INS. CO. v. FARMERS ELEVATOR CO., Inc. |
| Court | Texas Court of Appeals |
Appeal from Carson County Court; J. C. Jackson, Judge.
Action by the Farmers Elevator Company, Incorporated, against the Providence Washington Insurance Company, to set aside an award of appraisers and an umpire, appointed under provisions of a fire policy. From an adverse judgment, defendant appeals.
Reversed and rendered.
Monning & Singleton, of Amarillo, for appellant.
H. H. Smith, of Panhandle, for appellee.
This is an appeal from a judgment of the county court setting aside an award of two appraisers and an umpire duly appointed under the provisions of an insurance policy issued by appellant upon a truck and trailer. The property was destroyed by fire on February 20, 1939, and under the provisions of the policy appellant and appellee each selected an appraiser who met and selected an umpire and the three of them organized as an appraisal or arbitration committee to determine the amount of the loss. The appraisers met on the 24th of May, 1939, and assessed appellee's damages at $550. Appellee, contending it ought not to be bound by the award because the amount thereof was determined as a result of fraud, gross mistake and bias on the part of the appraisers and gross inadequacy in the amount awarded, filed suit to set it aside and to recover on the policy.
The case was submitted to the court without the intervention of a jury and resulted in a judgment setting aside the award of the appraisers and a recovery by appellee of the sum of $800, from which appellant has perfected an appeal to this court.
The policy contained the usual provision for the appointment of appraisers and the selection by them of an umpire to determine the amount of damages occasioned by the destruction of the truck and trailer in the event the insured and the insurer could not agree thereon.
Appellant assigns error of the court in setting aside the award and rendering judgment against it for a greater amount because the evidence was not sufficient to establish bias or prejudice of the appraisers nor fraud, accident, mistake nor any other ground upon which, under the law, the court was warranted in such action. The appointment of the appraisers, the oath subscribed by them, and the return of their award are all in regular form and nothing appears upon the face of any of the proceedings conducted by them which would indicate irregularity of any sort. Appellee contends, however, that the appraisers acted in an arbitrary manner; that the award was the result of a gross mistake and that there was collusion of the umpire and one of the appraisers with the adjuster of appellant. It contends that the appraisers acted arbitrarily because two of them had not seen the truck before the fire; knew nothing of its value before its destruction, and arbitrarily used a price list of secondhand trucks in arriving at the value of the truck and trailer which were destroyed.
The record shows that J. W. Christopher, the appraiser appointed by appellee, was a resident of Whitedeer where the truck and trailer were destroyed and had been in the wholesale oil and gas business there for some two years prior to the fire. Christopher testified that he was familiar with the truck and trailer and had seen them the day before they were destroyed. He also testified that he was familiar with the market value of the vehicles. In addition to this, the record shows the appraisers had before them a number of price lists showing the market prices of various makes of second-hand trucks and that they made an examination of the remains of the destroyed vehicles, which consisted of the frames, wheels, a portion of the tires and other parts that had not been destroyed by the fire. The adjuster for appellant testified that a very definite idea of the condition of such vehicles before they were destroyed by fire could be obtained by inspection of the indestructable parts after they had been damaged by examining the wearing portions and observing generally the apparent wear and tear to which the vehicle had been subjected before its destruction. It was also shown that the speedometer registered 38,000 miles. In addition to this, the appraiser selected by appellant was an employee of an automobile dealer at Amarillo and the umpire selected by the two appraisers was an automobile dealer in the same city. We think it reasonable, therefore, to assume that both of the appraisers and the umpire had a fair knowledge of the matters they were appointed to investigate. When the appraisers and umpire met to consider the matter, Christopher, the appraiser appointed by appellee, was of the opinion that the value of the truck and trailer prior to their destruction by fire was $900, the value of the truck, according to this witness, being $700 and the value of the trailer $200. His estimate of the salvage after the fire was $100, leaving $800 as the damage for which he thought the award should be made. Wilkerson, the appraiser appointed by appellant, was of the opinion that the damages should be assessed at $425. There being an irreconciliable difference between them, they discussed the matter with Casey, the umpire, who was of the opinion that the damage should be assessed at $650. The record shows they discussed the matter fully and at length and finally agreed that the damages should be assessed at $550. The testimony shows that, while the price lists were considered by the appraisers, their conclusions were not based wholly thereon, but the award was from 25% to 50% greater than the price lists indicated similar vehicles were worth on the market at the time they were destroyed. Christopher and Casey were witnesses at the trial of the case in the county court and they both testified that they performed their duties to the best of their ability and each said that from the actions of the others he believed that all three of the arbitrators did likewise.
We do not see anything in this or any of the testimony contained in the record that would indicate the appraisers acted in an arbitrary manner....
To continue reading
Request your trial
-
Hartford Lloyd's Ins. Co. v. Teachworth, 89-2041
...unless there is proof of some circumstance (such as fraud) to justify setting aside the award. See Providence Washington Insurance Co. v. Farmers Elevator Co., 141 S.W.2d 1024, 1026 (Tex.Civ.App.--Amarillo 1940, no writ); 46 Tex.Jur.3d Insurance Contracts and Coverage Sec. 476 We conclude t......
-
Hennessey v. Vanguard Ins. Co.
...to the motion for summary judgment, appellants included their contention that the award was invalid, citing Providence Washington Ins. Co. v. Farmers Elevator Co., 141 S.W.2d 1024 (Tex.Civ.App.--Amarillo 1940, no writ). That being so, their challenge to the validity of the appraisal was pro......
-
MLCSV10 v. Stateside Enters., Inc.
...speak the intention of the appraisers.’ ” JM Walker LLC, 356 Fed.Appx. at 746 (quoting Providence Wash Ins. Co. v. Farmers Elevator Co., 141 S.W.2d 1024, 1026 (Tex.Civ.App.-Amarillo 1940, no writ)). Stateside and MLCSV10 have provided no evidence that the appraisal award did not reflect McC......
-
Studer v. State Farm Lloyds
...mistake, or some circumstance that would render it unjust and unfair to one or both of the interest parties. Providence Wash. Ins. Co. v. Farmers Elevator Co., 141 S.W.2d 1024, 1026 (Tex. App.—Amarillo 1940, no writ). Plaintiff has not presented the Court with evidence that a mistake occurr......