Security Printing Co. v. Connecticut Fire Ins. Co.

• Decision Date: 04 April 1922
• Docket Number: No. 13684.,13684.
• Citation: 240 S.W. 263,209 Mo. App. 422
• Parties: SECURITY PRINTING CO. v. CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN.
• Court: Missouri Court of Appeals

240 S.W. 263

209 Mo. App. 422

SECURITY PRINTING CO. v. CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN.

No. 13684.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

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

Action by the Security Printing Company against the Connecticut Fire Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Leahy, Saunders & Barth, and David W. Voyles, all of St. Louis, for appellant.

Bishop & Cobbs, of St. Louis, for respondent.

ALLEN, P. J.

This is an action on a policy of fire insurance issued to the plaintiff, a corporation, by the defendant insurance company on April 1, 1913, insuring personal property contained in a building used by plaintiff in the conduct of its printing business in the city of St. Louis against loss by fire in a sum not exceeding $2,000. The policy was one of 39 fire policies covering said property, issued to the plaintiff by various insurance companies, the total insurance aggregating the maximum sum of $100,000; and by the terms of the policy in suit the defendant is liable only for its pro rata share of any loss against which plaintiff was insured by these 39 policies.

The property insured is described in the policy as follows:

"Equipment and apparatus and improvements, including motors, presses, machines. * * * Furniture, fixtures, tools, implements, office outfit. * * * Monotype machines and matrices. * * * Stock in trade and other merchandise, materials and supplies. * * * Type foundry furnishings, supplies and materials, including type, composition, electrotypes, stereotypes, wood cuts and standing forms, including composition on electrotypes, stereotypes and standing forms," etc.

The policy contains the following provisions:

"This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. * * *

"In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each 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 damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.

"This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required. * * *

"No suit or action on this policy for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire."

While the policy was in force, to wit, on March 18, 1914, a fire occurred in the basement of the building containing the insured property, destroying a part of the property contained in said basement, covered by the policy, and damaging other portions thereof. Subsequently, and after notice to defendant of the loss, plaintiff caused itemized inventories of the property in the building to be prepared, which were furnished by the adjusters representing defendant and the other insurance companies interested. Thereafter, upon disagreement as to the loss, these representatives of the insurance company called attention to the provisions of the policy providing for an appraisal, and demanded that such appraisal be made. Thereupon, on April 29, 1914, plaintiff and the insurance companies interested, including defendant, entered into an "agreement for submission to appraisers." The pertinent provisions of this agreement are as follows:

"This agreement * * * witnesseth, that Joseph N. Weyers and Charles M. Dawson shall appraise and estimate, by items and in detail, the sound value of, and the loss and damage to, the property destroyed or damaged by the fire of March 18, 1914, separately. These two appraisers shall first select a competent and disinterested umpire, and if the two appraisers fail to agree they shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such sound value and loss and damage and shall be binding upon both parties to this agreement. * * *

"The property on which the sound value and loss and damage is to be determined is as follows, to wit: (Setting forth the description thereof as contained in the policy.) * * *

"It is further expressly understood and agreed that in determining the sound value and loss and damage upon the property hereinbefore mentioned, the said appraisers are to make an estimate of the actual cash cost of replacing or repairing the same, and the actual cash value thereof, at and immediately preceding the time of the fire; and in case of depreciation of the property from use, age, condition, location or otherwise, a proper deduction shall be made therefor."

Of the two appraisers thus appointed, Weyers was selected by plaintiff, and Dawson by the insurance companies. The appraisers duly qualified, and selected one William F. Court to act as umpire in the event that the appraisers should fail to agree. In proceeding to appraise the loss, Weyers and Dawson were unable to agree, and they accordingly submitted their differences to the umpire. Dawson and the umpire ultimately joined in signing an instrument termed an "award," in which Weyers refused to join. This instrument, of date May 25, 1914, is as follows:

To the Parties in Interest: We have carefully examined the premises and remains of the property hereinbefore specified, in accordance with the foregoing appointment, and have determined the sound value and loss and damage to be as follows:

                                                Sound        Loss and
                                                Value.        Damage
                "First item. Basement ....... $ 41,297 37   $13,434 98
                Second item. Office and stock
                  room, first floor .........    4,409 00      none
                Third item. Bindery, second
                  floor .....................    5,114 25        "
                Fourth item. Press room
                  third floor ...............   11,213 00        "
                Fifth item. Composing room
                  fourth floor ..............   53,560 75        "
                                              ___________   __________
                  Total sound value and total
                    loss and damage ......... $115,594 37   $13,434 98"
                

Thereafter plaintiff, ignoring this "award," filed proofs of loss with defendant, purporting to show a loss of $25,173.92, and subsequently instituted this action.

The petition pleads the legal effect of the policy sued on, and alleges that plaintiff "has duly performed all of the conditions on its part to be done and performed by to terms of said policy, and has fully compiled with all of the provisions of said policy." It then alleges the said loss occurring by fire on March 18, 1914, averring that the loss and damage thus caused to the insured property was the sum of $25,173.92, and that defendant is liable for its pro rata share of such loss and damage, under a total insurance of $100,000, to wit, $503.48. Alleging notice to defendant, the giving to defendant of proof of loss, etc., that defendant has failed and refused to pay the amount due from it to plaintiff under the terms of the policy, and that such refusal was vexatious and without cause, judgment is prayed in the sum of $503.48, with interest from June 7, 1914, and for damages and attorney's fees as for vexatious refusal to pay the loss.

Defendant's amended answer, upon which the cause was tried, denies generally the allegations of the petition, except such as are in the answer specifically admitted. It then avers the issuance to plaintiff of the 39 policies mentioned above and sets out a table showing the names of the insurance companies panics issuing the various policies, the amount of the insurance provided in each, and the amounts alleged by defendant to be due from each company under the "award" which is subsequently pleaded in the answer; the amount due from defendant to plaintiff being thus stated to be $268.70. It is alleged that on or about March 18, 1914, a fire occurred in plaintiff's said premises which destroyed or damaged some of the property specified in these policies; that the companies and plaintiff disagreed as to the amount of loss thereby sustained, and in accordance with the provisions of the policy providing for an appraisement in the event of such disagreement, the insurance companies and plaintiff, on April 29, 1914, entered into a written agreement "in accordance with the said provisions of the said policies," providing that one Weyers, selected by plaintiff, and one...