Reliance Ins. Co. v. Bowen

• Decision Date: 23 November 1932
• Docket Number: No. 3916.,3916.
• Citation: 54 S.W.2d 597
• Parties: RELIANCE INS. CO. v. BOWEN.
• Court: Texas Court of Appeals

Page 597

54 S.W.2d 597

RELIANCE INS. CO. v. BOWEN.

No. 3916.

Court of Civil Appeals of Texas. Amarillo.

November 23, 1932.

Error from Collingsworth County Court; Edward Brown, Judge.

Suit by Bob Bowen against the Reliance Insurance Company. To review a judgment in favor of plaintiff, defendant brings error.

Reversed and remanded.

Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.

Cocke & Cocke, of Wellington, for defendant in error.

JACKSON, J.

This suit was instituted in the county court of Collingsworth county by the defendant in error, Bob Bowen, hereinafter called appellee, against the plaintiff in error, Reliance Insurance Company, hereinafter called appellant, to recover the sum of $500 on a fire insurance policy issued by appellant to appellee, insuring certain household goods, wearing apparel, and furniture alleged to have been damaged and destroyed by fire.

The appellant answered by general demurrer and general denial, and pleaded that its policy contained a provision to the effect that, in the event of a disagreement as to the amount of the loss, the claim should be submitted to appraisers on the demand of either party; that a disagreement arose, an appraisal was demanded, an appraisal agreement was entered into, appraisers were appointed, and an award was made fixing the amount of loss and damage at $163.25; that under the provisions of the policy the award so made was binding; and that appellant had tendered appellee said sum and made tender thereof into court.

By supplemental petition, the appellee admitted the disagreement as to the amount of the loss, entering into an appraisal agreement and the selection of appraisers. He pleaded, however, that the award was not binding, first, because the appraisers had not found sound values; second, because the appraisers had not furnished him with any written award; and, third, that they had heard no evidence as to the value of the property.

In response to special issues submitted by the court, the jury found that the furniture and property covered by the policy was damaged by fire and the amount of the damage thereto was the sum of $400. On these findings judgment was rendered that the appellee have and recover from the appellant the sum of $400 with his costs and interest, from which judgment this appeal is prosecuted.

The appellant presents as error the action of the trial court in holding that the award of the appraisers was not binding and in excluding it from the consideration of the jury on appellee's objection thereto.

The policy provided: "In the event of a disagreement as to the amount of loss, the same shall as above provided be ascertained by two competent and disinterested appraisers, the assured and this company selecting one and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damages and failing to agree shall submit their difference to the umpire and the award in writing of any two shall determine the amount of loss."

Appraisers were appointed in compliance with this provision and made the following award:

"We the undersigned pursuant to the within appointment do hereby certify that we have truly and conscientiously performed the duties assigned to us in accordance with the foregoing stipulations and have appraised and determined the actual cash value of said property on the 6th of July, 1931, and the actual loss and damage thereto by the fire which occurred on that date, to be as follows, to-wit:

"Sound value $______.

"Loss and damage $163.25.

"Total amount of award $163.25."

"The terms of submission to appraisers, referees, or arbitrators, if they are lawful and properly within the policy requirements, must at least be substantially complied with, in order to render any award made by them binding, since such terms determine the extent and limits of the powers and authority conferred upon them, and if the award shows especially upon its face, an exceeding of authority, or a failure to act in a vital particular, or fails to conform to such requirements as to the matters submitted, it will not be sustained. So, an award will not be sustained where the arbitrators refused to find or appraise the `sound value' as it was before the fire, for which purpose the submission was made; and in such case the insurer cannot successfully insist that insured must have a valid award made before bringing...