Schwartzman v. London & Lancashire Fire Ins. Co., Limited, of Liverpool, England

• Citation: 2 S.W.2d 593,318 Mo. 1089
• Decision Date: 04 February 1928
• Docket Number: 25888
• Parties: Max Schwartzman et al. v. London & Lancashire Fire Insurance Company, Appellant
• Court: United States State Supreme Court of Missouri

2 S.W.2d 593

318 Mo. 1089

Max Schwartzman et al. v. London & Lancashire Fire Insurance Company, Appellant

No. 25888

Supreme Court of Missouri

February 4, 1928

Motion for Rehearing Denied February 4, 1928.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Reversed and remanded (with directions).

Leahy Saunders & Walther for appellant.

(1) An award of appraisers is supported by every reasonable intendment and presumption, and the burden of proof is on the party attacking the validity of the award. Plaintiffs have not met that burden in this case. Zallee v. Laclede Fire Ins. Co., 44 Mo. 531; Stevens v. Ins. Co., 120 Mo.App. 104; Barnard v. Lancashire Ins. Co., 101 F 36; Payne v. Metz, 14 Tex. 56; Burchell v Marsh, 17 How. 350; Niagara Fire Ins. Co. v. Boon, 76 Ark. 153; Vincent v. German Ins. Co., 120 Iowa 272; Rolf v. Mut. Fire Ins. Co., 105 Me. 58; Cohen v. Atlas Assur. Co., 163 A.D. 381; Orient Ins. Co. v. Harmon, 177 S.W. 192; Moness v. Insurance Co., 50 Minn. 341; Cobin v. Adams, 59 Iowa 61; Robert Bros. v. Consumers Can Co., 102 Md. 362. (2) The fact that an appraiser has acted in the same capacity on other occasions does not disqualify him. Levine v. Ins. Co., 185 F. 981; Stemmer v. Scottish Union & National, 33 Ore. 65; Remington v. London Assur. Co., 43 N.Y.S. 431; Continental Ins. Co. v. Vanlandingham, 116 Ky. 287; Van Winkle v. Fire Ins. Co., 55 W.Va. 286; Mason v. Ins. Co. (Mo. App), 258 S.W. 759; Bishop v. Ins. Co., 130 N.Y. 563; Jones v. Northern Assur. Co., 182 Ky. 701. (3) Trevor's visit to the scene of the fire did not render him incompetent, since under the law appraisers have the right and are expected to examine the damaged property. Christianson v. Norwich Ins. Co. (Minn.), 88 N.W. 16; Kent & Purdy Paint Co. v. Aetna Ins. Co., 165 Mo.App. 44; Hall v. Norwalk Fire Ins. Co., 57 Conn. 105. (4) An appraiser is supposed and expected, in a restricted sense, to represent the party appointing him, and within reasonable limits to see to it that no legitimate consideration favorable to the party so appointing him is overlooked by the other appraiser. American Cent. Ins. Co. v. Landau, 62 N.J.Eq. 93; Dennis v. Fire Ins. Co. (N. J. Ch.), 107 A. 161; Whelen v. Goldman, 115 N.Y.S. 1006; Jones v. Northern Assurance Co., 182 Ky. 701; Aetna Fire Ins. Co. v. Davis, 21 Ky. Law Rep. 1456; 26 C. J. 527. (5) A preconceived opinion, resulting from an intimate knowledge of the subject-matter, does not disqualify one from acting as an appraiser. Nat. Fire Ins. Co. v. O'Brien, 75 Ark. 198; Produce Co. v. Norwich Ins. Co., 91 Minn. 216. (6) The award was not invalidated by reason of the relationship existing between the umpire, Paul Von Kuster, and the David C. Bell Investment Company, since there is no evidence of any misconduct reflecting bias as a result of that relationship to overcome the presumption of the regularity of the proceedings before the board of appraisal. Authorities under Point I. (7) The award was adequate and was arrived at in a fair and impartial manner, after a full and complete hearing on the issues, and even though, in the opinion of the chancellor, inadequate, he was not justified under the law in setting it aside for that reason. Robertson v. Lions Ins. Co., 73 F. 928; Vincent v. German Ins. Co. (Ia.), 94 N.W. 458; Levine v. N. W. Nat. Ins. Co., 185 F. 981; Michels v. Underwriters Assn., 129 Mich. 417; Strome v. London Assur. Co., 47 N.Y.S. 481; Perry v. Greenwich Ins. Co., 137 N.C. 402; Steimer v. Scottish Union Ins. Co., 33 Ore. 65.

Laughlin, Frumberg, Blodgett & Russell for respondents.

(1) An appraiser or arbitrator is not the agent or representative of the party appointing him, but must be impartial and disinterested as between the parties. Hyeronimus v. Allen, 52 Mo. 105; Strong v. Strong, 9 Cush. 500; Scholz v. Mills, 176 Mo.App. 375; Christianson v. Norwich Ins. Soc., 85 Minn. 526; Knox-Burchard Merc. Co. v. Ins. Co., 129 Minn. 292; Bradshaw v. Insurance Co., 137 N.Y. 137. (2) An agent or employee of a party to the appraisement or arbitration proceeding is incompetent, as a matter of law, to act as appraiser or arbitrator in such proceeding, and an award made by a board of which he is a member is void, as a matter of law, and regardless of any showing that such member acted unfairly or partially. Goodwin v. Insurance Co., 118 Iowa 601; Pool v. Hennessy, 39 Iowa 192; Schoenich v. Insurance Co., 109 Minn. 388; Western Assur. Co. v. Hall, 143 Ala. 168; Railway Conductors' Assn. v. Robinson, 147 Ill. 159; Vineberg v. Assn. Co., 19 Ont. App. 293; Produce Refrigerating Co. v. Ins. Soc., 91 Minn. 210; Sweet v. Morrison, 116 N.Y. 19. (3) An ex parte examination of the damaged property by one of the appraisers indicates partiality and is sufficient ground for setting aside the award. Conrad v. Massasoit Ins. Co., 4 Allen, 20; Christianson v. Fire Ins. Soc., 85 Minn. 526; Knox-Burchard Merc. Co. v. Fire Ins. Co., 129 Minn. 292. The continuous or frequent employment of the same person as appraiser or arbitrator may be sufficient to warrant a court in holding as a matter of fact that such person was not an impartial and disinterested appraiser. Bradshaw v. Insurance Co., 137 N.Y. 137.

Laughlin, Frumberg, Blodgett & Russell for respondents in Court en Banc.

(1) The question as to whether or not the judgment of the trial court is excessive was not raised in the trial court nor in this court. The only grounds set forth in the motion for a new trial in regard to the amount of the judgment are as follows "Sixth. That the court erred in finding the value of the property covered by the insurance in this case at $ 55,000. Seventh. The court failed to take into consideration in finding the value of the property covered by the insurance in this case at $ 55,000 that in the purchase price of the property the good will was a valuable element concerned and that the $ 55,000 claimed to have been paid for said property included good will." The sixth ground was entirely consonant with defendant's contention throughout that the question of damages was not a matter of litigation, and that the court was bound by the award of the appraisers, which, of course, would be true if the award was valid. The seventh ground merely stated an alleged error of the court in computing the value of the property as an error justifying the granting of a new trial. In neither of these assignment was it stated either in express terms or by fair implication that the amount of plaintiffs' recovery was excessive, nor was the trial court asked to reduce the amount of the judgment or to compel a remittitur by the plaintiffs. When plaintiffs filed their brief in this case they assigned only two errors. The first assignment relates solely to the action of the court in setting aside the award, and the second assignment predicates error on the assessment of damages in any other sum than that found by the board of appraisers. It is not an assignment that the amount of plaintiffs' recovery was excessive, as shown by the evidence, but it is a charge that the amount of judgment was wrong because it differed from the amount of the award. That appellant nowhere urged or relied upon the supposed excessiveness of plaintiffs' recovery is shown by their points and authorities which relate solely to the validity of the award, and in not a single point is there the slightest intimation that the assessment of damages was erroneous because excessive, nor is there the slightest hint that this court should revise the amount of plaintiffs' recovery and enter a new judgment for the amount of damages shown by the evidence. Appellate courts do not sit to correct errors as to which no complaint is made. Rule 15; Hiemenz v. Harper, 275 Mo. 383. (2) The judgment of the trial court, so far as it related to determining the amount of plaintiffs' recovery, was an action at law, supported by substantial testimony and not reviewable by this court. (3) The most important question is whether or not this court should be burdened with a re-examination of a thousand pages of testimony in a trial de novo of the amount of loss and damage due to plaintiffs. If this was a suit in which none but equitable issues were raised or where the legal issues were merely incidental or collateral to the determination of equitable issues, it would be the duty of this court to re-examine the facts in the case, and this was the view taken in Division No. 2. This theory is erroneous. So far as a determination of the value of the property, the amount of loss and damages, and the amount for which a money judgment should be rendered in favor of the plaintiffs, were purely and strictly legal and wholly independent from the equitable issues relative to the setting aside of the award. The principle of retention of jurisdiction to do complete equity, even though incidentally deciding issues which might have been decided in an action at law, under the concurrent jurisdiction of law and equity, has no application to the present controversy. That principle is applied when resort to legal remedies or decision of law issues is necessary to give effect to the equity decree, but it does not follow that because an equitable issue is presented to a chancellor he thereby becomes possessed of the power to decide independent law issues between the same parties, even though connected with the same subject, or stated in the same petition. "It is not true, by any means, that when a court of conscience has acquired cognizance for one purpose it thereby acquires cognizance over the entire controversy for all purposes." Lador v. McGovern, 48 N.J.Eq. 275; Stout v. Phoenix Assur. Co., 65 N.J.Eq. 573. The complete equitable relief demanded was merely the setting aside of the obstacle of an adverse award; it was not...