Rutter & Hendrix v. Hanover Fire Ins. Co.

• Decision Date: 10 July 1903
• Citation: 35 So. 33,138 Ala. 202
• Court: Alabama Supreme Court
• Parties: RUTTER & HENDRIX v. HANOVER FIRE INS. CO.

35 So. 33

138 Ala. 202

RUTTER & HENDRIX v. HANOVER FIRE INS. CO.

Supreme Court of Alabama

July 10, 1903

Appeal from Circuit Court, Montgomery County; J. C. Richardson Judge.

Action by Rutter & Hendrix against the Hanover Fire Insurance Company. From a judgment in favor of plaintiffs for less than the amount demanded, they appeal. Reversed.

The complaint contained two counts. In the first count the plaintiffs claimed $2,000 due as the value of stock of merchandise which was destroyed by fire, and which was insured against loss by a policy issued on May 7, 1900. The second count sought to recover $1,500 on a policy of insurance issued May 9, 1900. Each of the counts of the complaint was in code form.

The defendant pleaded several pleas. The first plea, as originally filed, was as follows: "(1) That in and by each of the two policies sued upon it was agreed and stipulated, among other things, that this company, the defendant, should not be liable beyond the actual cash value of the property at the time any loss or damage occurred, and that the loss or damage should be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused; that said ascertainment or estimate should be made by the assured and this company, or if they differed, then by appraisers, as provided in each of said policies; and in and by each of said policies it was further expressly stipulated and agreed that, in event of disagreement as to the amount of the loss, the same should as above provided, be ascertained by two competent and disinterested appraisers, the insured and the company each selecting one, and the first two chosen should first select a competent and disinterested umpire; the appraisers together should then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree should submit their differences to the umpire; and the award in writing of any two should determine the amount of such loss. And defendant avers that after said loss and heretofore, on, viz., the 8th day of November, 1900 plaintiffs and defendant differed and disagreed as to the loss or damage caused by said fire under the policies sued upon, and in pursuance of the above-mentioned provision of said policies the plaintiffs and defendant entered into an agreement whereby they submitted said loss to an appraisement; that plaintiffs selected one Hugo Noa as an appraiser, and defendant selected one E. A. Scott as an appraiser; that the said Hugo Noa and E. A. Scott, so selected as the appraisers, before entering upon their duties as such appraisers, took an oath to act with impartiality in making said appraisement, and selected, in accordance with said provisions in said policies, as umpire, one Henry Boylan, and said Boylan, before entering upon his duties as said umpire, took a like oath; that, after said appraisers and said umpire had so taken said oaths, they respectively entered upon their duties as provided in said agreement, and they examined into and appraised the said loss, stating separately sound value and damage, and fixed said damage, under both of said policies, at the sum of $1,261.46, and awarded the same in writing at said amount. And defendant avers that by the terms of each of said policies it had sixty days within which to pay the loss after notice, ascertainment, estimate, and satisfactory proof of said loss had been received by this defendant, including an award by appraisers when appraisal had been required, and that subsequent to the appraisal of the said loss and said award under the said policies, and within sixty days thereafter, and on, to wit, the 19th day of January, 1901, and before the commencement of this suit, the defendant tendered to the plaintiffs the said $1,261.46, which was the full amount of said loss under both of said policies so found by said appraisal and award, in payment of the loss under said policies, which tender the plaintiffs refused, and defendant has always been and now is ready and willing to pay the plaintiffs the said amount, and now brings the money into court." This plea was subsequently amended by adding thereto the following amendments: "And defendant avers that in and by each of the policies sued upon it was expressly stipulated and agreed and made a material part thereof that no suit or action on said policy for the recovery of any claim should be sustainable in any court of law or equity until after full compliance by the insured, who are these plaintiffs in this suit, with all the foregoing requirements, which said requirements included the requirements above set forth in this plea as to appraisal of loss and damage in case of difference or disagreement between plaintiffs and defendant as to the amount of said loss and damage, and such loss was not payable until sixty days after said award was made by the appraisers, where an appraisal has been required; wherefore defendant says plaintiffs can only recover said amount so tendered and paid into court." The second, third, and fourth pleas of the defendant were of tender, in which defendant averred that, pursuant to the award made by the arbitrators under the agreement of arbitration entered into between plaintiffs and defendant, ascertaining that $1,261.46 was the amount of damages plaintiffs sustained, defendant had tendered such amount to the plaintiffs, which they declined. In the fifth plea the defendant set up the award by arbitration under and pursuant to the agreement entered into as provided by the stipulations contained in the policies, and that the defendant had tendered the amounts awarded the plaintiffs to them, which tender plaintiffs refused, and which tender defendant in said plea averred it kept good, and further averred that it brought the money into court at the time of filing the pleas.

The plaintiffs moved to strike from the file the amendment to plea No. 1 upon the following grounds: "(1) Said plea No. 1, as originally filed, is a plea of tender in accordance with an appraisement alleged to be had as provided by the policy sued upon, and the amendment impeaches the allegations originally filed as to the appraisement, and sets up that plaintiffs cannot recover even for the amount tendered. (2) Said plea, as amended, sets up two inconsistent defenses in one plea to the complaint. (3) Said plea, as originally filed, was one in confession and avoidance of the complaint and the amendment sets up a defense directly in conflict with the plea as originally filed." This motion was overruled, and plaintiffs duly excepted. The plaintiffs then demurred to plea No. 1, as amended, upon the following grounds: "(1) Said plea states the conclusions of the pleader, and sets up no facts sustaining said conclusions. (2) The facts showing the materiality of the stipulations referred to in said plea, as amended, are not set forth in said plea. (3) It is averred in and by said plea that the stipulations and agreement were a material part of the policy sued upon, but the facts showing that said stipulations and agreement were material are not set forth or alleged. (4) Said plea, as amended, sets up two inconsistent defenses in one plea to the complaint. (5) The amendment to said plea is vague and indefinite as to the matters and things with which it is charged that plaintiffs failed to comply. (6) Said plea, as amended, shows that an appraisal was entered into and an award made in accordance therewith, and that defendant tendered the money, as shown by said award, to the plaintiffs, and also shows, notwithstanding that fact, that plaintiffs have failed to comply with the requirements for an appraisement, and that said appraisement has not been had. (7) Said plea seeks to bar the right of the plaintiffs to recover in this case, because of the stipulation in the policy sued upon, that the loss was not payable until sixty days after the award was made by the appraisers, where an appraisal has been required, and does not allege that plaintiffs have declined or refused to enter into said appraisement, nor that said appraisement has been required by defendant." This demurrer was overruled, and thereupon the plaintiffs filed several replications to pleas 1 and 4. Among these replications were the following: "(1) That the damage to the goods and property that was totally destroyed was not submitted to the appraisers. (2) That it was agreed by and between plaintiffs and defendant at the time of the execution of the articles of appraisement that said appraisers should ascertain and appraise the loss only to the goods and property damaged, and not the loss and damage on those actually and wholly destroyed, and said appraisers were so advised before entering upon the discharge of their duties as such, and did not ascertain and appraise the loss upon the goods and property wholly destroyed. (3) That the agreement of appraisement between plaintiffs and defendant was modified at the time and subsequent to the execution thereof by an agreement between plaintiffs and defendant, by which it was understood and agreed that the appraisers should ascertain and appraise only the loss to the goods and property that were damaged, and not the loss and damage on those actually and wholly destroyed, and said appraisers were advised of this modification of said agreement of appraisement, and did not ascertain and appraise the loss upon the goods and property wholly destroyed; wherefore plaintiffs aver that said award is not binding upon them, except to the extent of the loss and damage upon the goods that were not totally destroyed. (4) That said appraisers did not ascertain nor appraise the loss...