Schreck v. Standard Accident Ins. Company

• Decision Date: 27 February 1931
• Docket Number: 251-1930
• Citation: 156 A. 565,102 Pa.Super. 18
• Parties: Schreck et ux. v. Standard Accident Insurance Company, Appellant
• Court: Pennsylvania Superior Court

156 A. 565

102 Pa.Super. 18

Schreck et ux. v. Standard Accident Insurance Company, Appellant

No. 251-1930

Superior Court of Pennsylvania

February 27, 1931

Argued November 18, 1930

Appeal by defendant from judgment of C. P., Bradford County September T., 1929, No. 176, in the case of William I Schreck and Minnie Schreck v. Standard Accident Insurance Company.

Assumpsit on an automobile insurance policy. Before Culver, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for the plaintiffs in the sum of $ 2,023.32 and judgment entered thereon. Defendant appealed.

Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.

Affirmed.

John C. Ingham, and with him H. W. Raymond and H. H. Mercereau, for appellant.

William P. Wilson, and with him Howard F. Wilson and J. Roy Lilley, for appellee.

Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham, Baldrige and Whitmore, JJ.

OPINION

Per Curiam.

(Unless otherwise noted, the quotations are from the opinion of the lower court refusing a new trial).

"This controversy arises out of a contract of insurance by which the defendant insured the plaintiffs against accidental injury and damage to a Cadillac automobile, owned by plaintiffs, by collision."

"At the opening of the trial counsel for both plaintiffs and defendant stated to the court that the question involved was one of law for the court and not of fact for the jury."

"The only question in dispute between plaintiffs and defendant in this controversy was the amount of damages sustained by plaintiffs and for which defendant was liable under its contract for insurance. That a liability in some amount existed was conceded, and as the parties were unable to agree upon the amount, an appraisal in accordance with the provisions of the policy was held."

"A representative of defendant company was present and fully heard by the appraisers and had full knowledge of their considerations and the award was made in writing, signed by two of the appraisers and delivered to defendant company on or about April 25, 1929, and no complaint or objection appears to have been made by the company to the award so made until plaintiffs began pressing for payment of the amount, and then without stating in what particular it contended the award was inadequate, erroneous or not in compliance with the policy of insurance, it wrote a letter to plaintiffs' counsel, stating in general terms that the award was not in compliance with the requirements of the policy of insurance, and that it refused to recognize liability thereunder. Answering this letter, counsel for plaintiffs wrote defendant company, calling its attention to the fact that it had not designated in what particular the award failed to comply with the provisions in the policy, and defendant company remained silent, took no further action to have an appraisement made in accordance with its contentions, nor did it take any action to set aside the award that was made, but flatly refused payment, and when suit was brought, in its affidavit of defense, it gave no further light as to its contention."

"At the trial of the case defendant admitted that the appointment of appraisers was proper and regular, and there is no allegation or contention that the appraisers acted dishonestly or improperly in the discharge of their duties. We think the appraisers did have jurisdiction of the subject matter, to wit, the matters submitted to them for their determination."

The duties of the appraisers are set out in the policy as follows: "In the event of an accident due to collision sustained by any of the automobiles described herein and resulting in loss or damage covered under insuring agreement 1, paragraph 'C,' the amount of such loss or damage, or the nature and extent of the damage requiring repair or replacement is to be determined by the parties hereto, if possible: otherwise by two appraisers, one to be chosen by the named assured and one by the company. The two appraisers so chosen, if they are not able to agree may select a third and the award in writing of any two appraisers shall determine the amount of such loss or the nature and extent of the damage requiring repair or replacement. . . . . The company may accomplish such repair or replacement so determined by such means as it may elect, or, at the option of the company, pay in money the amount of the loss as fixed by the appraisers."

"Defendant contends that by the award made by the appraisers, it could not exercise its option of repairing the car to its original condition, instead of paying an amount in damages. There is no evidence in the case that defendant ever attempted to exercise such option; that it ever informed plaintiffs of its desire to repair the automobile in question or it in any wise offered to make such repairs. It simply remained silent and refused to pay the amount of the award upon its contention that the award was not in compliance with the policy of insurance, without designating in any wise in what particular it was defective or erroneous, and without making any effort to have the award corrected or set aside."

The proper action on the part of the company, if they wished to avail itself of the alternative choice, which it...