Providence-Washington Ins. Co. v. Kennington

• Decision Date: 17 April 1916
• Docket Number: 17659
• Citation: 111 Miss. 244,71 So. 378
• Court: Mississippi Supreme Court
• Parties: PROVIDENCE--WASHINGTON INSURANCE COMPANY v. KENNINGTON

71 So. 378

111 Miss. 244

PROVIDENCE--WASHINGTON INSURANCE COMPANY v. KENNINGTON

No. 17659

Supreme Court of Mississippi

April 17, 1916

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Suit by R. E. Kennington against the Providence-Washington Insurance Company. From a judgment for

The facts are fully stated in the opinion of the court.

Affirmed.

McLaurin & Armistead, for appellant.

Watkins & Watkins, for appellee.

OPINION

STEVENS, J.

Appellee, as plaintiff in the court below, instituted this suit against appellant upon a contract of fire insurance covering a certain automobile owned by appellee in the city of Jackson. The policy of insurance, among other provisions, contained the following:

"In the event of disagreement as to the amount of loss or damage the same must be determined by competent and disinterested appraisers before recovery can be had hereunder. The insured and this company shall each select one, and the two so chosen shall then select a competent and disinterested umpire. Thereafter the appraisers together shall estimate and appraise the loss or damage, stating separately sound value and damage, and failing to agree, shall submit to the umpire; and the award in writing of any two shall determine the amount of such loss or damage; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.

. . .

"No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity unless the insured shall have fully complied with all the foregoing requirements."

There was a loss by fire, and the parties, being unable to agree upon the amount of damages, entered into an agreement for an appraisement in accordance with the provisions of the policy, Mr. Kennington selecting one H. C. Lawrence and the insurance company selecting Mr. Charles McDonnell, both of Jackson, Miss. The appraisers selected signed an appraisal agreement, and, being unable to agree as to the measure of damages, undertook to agree upon an umpire, but utterly failed to agree upon or select an umpire under the terms of the policy. When the appraisers so selected failed to select an umpire, they abandoned their efforts toward executing the appraisal agreement, and each went about his own business. Mr. Kennington thereafter instituted this action to recover on his policy, and the defendant filed pleas challenging the right of the plaintiff to maintain this action until there has been appraisement and award in accordance with what the defendant contends to be the true meaning of the provisions of the policy above quoted. It appears that after the failure to agree upon an umpire neither party to the contract demanded new appraisers. It further appears from the evidence that the principal difference between the appraisers selected was whether the umpire should be selected from citizens in or around Jackson, Miss., where Mr. Kennington lived and the loss occurred, or should come from another city or vicinity, and thereby should not be subject to local influence. It appears that the appraiser selected by Mr. Kennington submitted the names of several citizens of Jackson as also the name of one Mr. Lee, operating an automobile repair shop at Crystal Springs, Miss. The appraiser for the company submitted the names of several who lived in other cities in the state of Mississippi, as also the names of two residing in Jackson. The appraiser for Mr. Kennington found objections to the proposed umpire living in Jackson suggested by the company's appraiser, and objected generally to accepting an umpire from a distant city. There was evidence that many of the names suggested by the company's appraiser were suggested by appellant's adjuster, and that at the time these names were submitted appellant did not disclose to appellee's appraiser the fact that it had through its agents suggested any of these names.

The proof in this case shows that Mr. Kennington entered into the agreement for an appraisement in good faith; that he selected a disinterested and competent appraiser; that he left to his appraiser the responsibility and job of selecting an umpire and that the failure to make an award was occasioned by no fault or negligence on the part of appellee. Under these circumstances, therefore, did appellee have the right of action on his policy? Under the terms of the contract here sued on we answer this question in the affirmative. In reference to the arbitration clause here in review there is conflict in the authorities. Many of the leading authorities hold that there must be a demand for arbitration before the insurer can complain of the other party's default in failing to seek appraisement and award. Winchester v. North British & Mercantile Insurance Co., 160 Cal. 1, 116 P. 63, 35 L. R. A. (N. S.) 404, and authorities there cited. Additional authorities on this point are collated in the elaborate brief of counsel for appellee. In the instant case there was an effort in good faith on the part of the plaintiff in the court below to arbitrate. The policy does not contain an express provision for an appraisement in the event the...