Security Printing Co. v. Connecticut Fire Insurance Company of Hartford, Connecticut
| Decision Date | 04 April 1922 |
| Parties | SECURITY PRINTING COMPANY, Respondent, v. CONNECTICUT FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.
REVISED AND REMANDED.
Judgment reversed and cause remanded.
Leahy & Saunders and David W. Voyles for appellant.
(1) The agreement for appraisement entered into after the fire appointing the appraisers, was a practical carrying into effect of the stipulations of the policy. It was not a submission to arbitration in the legal sense, but a just and reasonable mode of fixing the value of the injured goods before and after the fire. The persons selected acted as appraisers, and not as arbitrators. Dworkin et al. v Caledonian Insurance Co., 226 S.W. 846; Zallee v The Laclede Mutual Fire and Marine Insurance Co., 44 Mo. 530. (2) The appraisers were free to act on their own opinion, without the help of evidence; and nothing more was intended than that an estimate, according to the opinion of the two appraisers, and of the umpire, if they differed, should be reached. Dwookin et al. v. Caledonian Ins. Co., supra. (3) Such an appraisement, when not fraudulently procured, is binding as to the amount. Authorities, Points 1 and 2, supra; Young v. Penn. Fire Ins. Co., 269 Mo. 15. (4) The previous ruling of this court in the Westchester case, which case involved the same finding of appraisers, though not the same evidence, nor the same issues under the pleadings, was in accordance with the foregoing authorities, to the extent that said agreement for appraisement was held to be neither an award under the statute or at common law. Therein, this court held that a substantial compliance only was required. Security Printing Company v. Westchester Fire Ins. Co., 221 S.W. 430. (5) The decision of this court, in the Westchester case, that the appraisement was not based upon the policy contract, but upon the subsequent agreement entered in to on April 29, 1914, is overruled by the subsequent decision of the Supreme Court in the Dworkin case, which overruled the Young case, which this court followed in the Westchester case. (6) In this case the question is, under the issues raised by the pleadings, whether the work of said appraisers, admittedly unimpeached on account of any alleged fraud or corruption, was a substantial compliance with the terms of the policy contract. If it was the intention of this court, to hold in the Westchester case, that the validity and binding effect of said finding is solely to be determined upon the terms of the agreement of April 29, 1914, which was without consideration and surrounded with no element of waiver of estoppel; and, that tested by such rule, said finding was void on its face because of the manner in which the appraisers estimated and entered their conclusions, embodied in the finding, then said decision is also overruled by the Dworkin case, for it was a contract obligation to submit the loss to appraisement under the policy itself. (7) It is specifically held in the Zallee and Dworkin cases that the observance of technicalities that would be required in cases of common-law arbitration, are not required in the case of appraisements under insurance policies. But even in the case of common-law arbitrations, mandatory provisions in contracts, providing therefor, are waived when no objections are made at the time. Tucker v. Allen, 47 Mo. 488; Sweeney v. Vandry, 2 Mo.App. 552. Common-law awards are valid if the arbitrators have fairly investigated the matter in controversy, and have agreed; and are not void for failure to strictly comply with provisions of the agreement, or for non-observance of unimportant technicalities. (8) In an apprisement under an insurance contract, the appraisers are not required to determine the actual cash value of each article, and place the damage on each, at a definite sum. If required, it was only required in so far as deemed necessary by the appraisers. Boutross v. Insurance Co., 100 Kan. 544. (9) Where the award is within the submission and contains the honest decision of the appraisers, it will not be set aside for error in either law or fact, because to do so would be to substitute the judgment of the court, in place of that of the judges chosen by the parties, and make such finding the commencement, and not the end of litigation. Levin v. N.W. Nat'l Ins. Co., 185 F. 981; Perry v. Ins. Co., 137 N. Carolina 402; Eberhardt v. F. Ins. Co., 14 Ga.App. 340; Commercial Union Ins. Co. v. Dalzell, 210 F. Rep. 605. (10) These authorities, and those hereinafter cited are in support of the general rule, that when the amount of loss under an insurance policy has been submitted to appraisers, both parties are conclusively bound by the finding, in the absence of fraud, or some act, which will amount to misconduct. Hamilton v. Liverpool & London Globe Ins. Co., 136 U.S. 242; 7 Cooley's Briefs on Ins., Eupp. 1505, sec. 3631; Non-Royalty Shoe Co. v. Phoenix Assurance Co., 210 S.W. 37; Young v. Penn. Fire Ins. Co., 269 Mo. 1; Zallee v. Ins. Co., 44 Mo. 530; Steinberg v. Boston Ins. Co., 144 A.D. 110; Solem v. Conn. Fire Ins. Co., 41 Mont. 351; Perry v. Ins. Co., 137 N. Car. 402. (11) When an offer to pay plaintiff is unequivocally and unconditionally refused, a formal tender of the amount in money is not necessary, but such refusal will operate as a tender, and stop the running of interest. Enterprise Soap Co. v. Sayers, 55 Mo.App. 15; Stevenson v. Kilpatrick, 166 Mo. 262; Schieley v. Pendleton, 76 Mo.App. 454; McDonald v. Wolf, 40 Mo.App. 302; Johnson v. Garlichs, 63 Mo.App. 575. Where defendant tenders into court the sum of money, which plaintiff, under the evidence, is entitled to recover, the defendant is entitled to a judgment in its favor. Sanders v. Mosberger, 159 Mo.App. 488. (12) Penalty for damages for alleged vexations refusal to pay should not be inflicted when the evidence shows that such refusal was not wilful and without reasonable cause, as the facts would appear to a reasonable and prudent man before the trial. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 227 Mo. 399; Patterson v. Ins. Co., 174 Mo.App. 37; Rollins v. Business Men's Accident Assn., 220 S.W. 1022; Berryman v. Md. Motor Car Co., 204 S.W. 738.
Cobbs & Logan for respondent.
(1) The voluntary remittitur of the attorney's fee removes all questions of vexatious refusal to pay and leaves only the validity of the verdict for plaintiff's claim and interest in question. (2) Appellant, as a defense, alleged an agreement for an appraisement and award made "in accordance with . . . said agreement." Counsel tried this case on those allegations. They cannot now disregard that agreement and contend that the award was valid, under the general terms of the policy, although not made in accordance with that agreement. They cannot change their theory in this court. The appraisers would have no authority but for the agreement appointing them. (3) The question as to the validity of the award in this case was submitted to the jury. (4) The award, to be binding, must be made in substantial compliance with the agreement for submission to appraisers. If it is regular on its face, the question as to whether or not the appraisers complied with that agreement is one of fact for the jury. In this case that fact was submitted to and decided by the jury. Security Printing Co. v. Westchester Fire Ins. Co., 221 S.W. 430. (5) The award in this case is, in fact, void on its face, and appellant cannot complain that the jury found that it has not been made in accordance with the agreement. Security Printing Co. v. Westchester Fire Ins. Co., 221 S.W. 430. (6) The question of tender cannot be material, since the jury found for the full amount claimed by plaintiff.
--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 $ 2000. The policy was one of thirty-nine 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 thirty-nine policies.
The property insured is described in the policy as follows: etc.
The policy contains the following provisions:
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