Springfield Fire & Marine Ins. Co. v. Barnett

• Decision Date: 16 April 1919
• Docket Number: (No. 6071.)
• Citation: 213 S.W. 365
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. v. BARNETT.
• Court: Texas Court of Appeals

213 S.W. 365

SPRINGFIELD FIRE & MARINE INS. CO. v. BARNETT.

(No. 6071.)

Court of Civil Appeals of Texas.

April 16, 1919.

Rehearing Denied June 18, 1919.

Error from District Court, McLennan County; H. M. Richey, Judge.

Action by Elmer Barnett against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Locke & Locke, of Dallas, for plaintiff in error.

W. L. Eason, of Waco, for defendant in error.

JENKINS, J. (Our findings of fact necessary to understanding this case will be contained in the opinion.)

This suit was brought upon a fire insurance policy on goods, wares, and merchandise, a part of which were destroyed and a part injured by fire during the life of the policy. The case was submitted to a jury on the following special issues:

"First Question. Was the failure of Wm. Green and A. L. Hartshorn to agree upon an umpire due to the neglect or fault of either of them? Answer: No. Neither was exclusively to blame.

"Second Question. (If you answer first question in the negative you need not answer second question. If you answer first question in the affirmative, then answer second question.) To the neglect or fault of which of them was their failure to agree upon an umpire due? Answer: ____

"Third Question: Was the failure of William Green and A. L. Hartshorn to agree upon an umpire due to any neglect or fault of either the plaintiff or defendant? Answer: No. Neither was exclusively to blame.

"Fourth Question: (If you answer third question in the negative, then you will not answer fourth question. If you answer third question in the affirmative, then answer fourth question.) To the neglect or fault of which of them was the failure of William Green and Hartshorn to agree upon an umpire due? Answer: ____.

"Fifth Question: Were the estimates of witnesses Jarrell and Locke, Andrews and Locke, and Hines and plaintiff, made under agreement of the insurance company and plaintiff that the same should take the place of and be accepted in lieu of the appraisement as provided in the insurance policy sued on herein? Answer: No.

"Sixth Question: Was the demand for an appraisement as made by the defendant's adjuster made in good faith and for the purpose of having a valid appraisement? Answer: Yes.

"Seventh Question: What was the actual cash value of the plaintiff's stock of merchandise at Cameron, Texas, immediately preceding the fire? Answer: $5,682.40.

"Eighth Question: What was the actual cash value of plaintiff's stock of merchandise at Cameron, Texas, immediately after the fire? Answer $2,226.41.

"Ninth Question: What was the actual cash value of plaintiff's furniture and fixtures at Cameron, Texas, immediately preceding the fire? Answer: $884.67.

"Tenth Question: What was the actual cash value of plaintiff's furniture and fixtures at Cameron, Texas, immediately after the fire? Answer: $442.33.

"Plaintiff's Special Issue One: Did the defendant's adjuster, acting with the plaintiff, attempt to ascertain and estimate plaintiff's loss and damage? Answer: No.

"Plaintiff's Special Issue Three: Did William Green desire an appraisal? Answer: Yes."

Judgment was entered for defendant in error, who will hereinafter be referred to as Barnett, for the amount found by the jury. The evidence sustains said findings. At the conclusion of the testimony, plaintiff in error, which will hereinafter be referred to as insurance company, moved the court for an instructed verdict, and assigns error upon the refusal of the court to grant such motion. Barnett objects to the consideration of the insurance company's assignments of error, for the reason that they do not comply with the rules in reference to briefing. The violation complained of is purely technical, and the manner in which the brief is written aids this court more than it would have done had the rules been strictly complied with, inasmuch as it avoids a repetition of facts shown by the record.

The motion for an instructed verdict was properly overruled, for the reason that there were several issues of fact for the determination of the jury raised by the pleadings and the evidence. Among these are:

(a) Was there a disagreement between the parties as to the amount of loss?

(b) Did Hartshorn, the appraiser selected by the insurance company, arbitrarily terminate the effort to agree upon an umpire, and did the insurance company ratify such action?

There were other issues of fact which might properly have been submitted to the jury, and which need not here be stated.

The insurance company bases its contention with reference to its demand for an instructed verdict upon the proposition that, inasmuch as the policy here sued on provided that, in the event of a disagreement between the parties as to the amount of loss, the same should be submitted to arbitrators, who should first select an umpire, and that the award of such arbitrators should be a prerequisite to bringing suit on the policy. Appraisers were selected by the insurance company and Barnett, respectively, but they failed to agree upon an umpire, for which reason there was no award of the arbitrators.

With reference to ascertaining the amount of loss, the policy provides as follows:

"Said ascertainment or estimate shall be made by the insured and this company, or if they differ, then by appraisers as hereinafter provided."

It will thus be seen that the policy did not require an ascertainment of the loss by appraisers, unless the parties to the insurance contract should differ as to the loss arising under the same. It will be seen by reference to the findings above set out that the jury found that the company's adjuster, acting with Barnett, did not attempt to ascertain and estimate Barnett's loss and damage. The evidence sustains this finding. Such being the case, we hold that there was no disagreement between the parties as to the amount of loss within the meaning of the policy. The company's adjuster refused to go with Barnett and examine the goods, and try to agree upon the amount of the loss. He offered Barnett a certain sum in full payment of the liability of the insurance company herein, as well as of the Prussian Insurance Company, in which Barnett held a policy for $1,000, and in which the adjuster of the insurance company involved in this suit was also adjuster for the Prussian Insurance Company.

Where a policy provides for arbitration as to the amount of loss, in the event of a disagreement between the parties, such a disagreement is a prerequisite to the right to demand such arbitration. The disagreement must be one in fact, evidenced by an attempt in good faith on the part of the party demanding arbitration to agree as to the loss. A mere arbitrary refusal to pay the amount demanded, and offering a less amount, does not constitute such a disagreement as is contemplated by the policy. Insurance Co. v. Simmons, 12 Tex. Civ. App. 607, 35 S. W. 723; Ins. Co. v. Stuart, 38 S. W. 396; Ins. Co. v. Cannon, 45 S. W. 949; Hickerson v. Ins. Co., 96 Tenn. 193, 33 S. W. 1042, 32 L. R. A. 172; Boyle v. Ins. Co., 169 Pa. 349, 32 Atl. 553; Moyer v. Sun Ins. Office, 176 Pa. 579, 35 Atl. 221, 53 Am. St. Rep. 690; Rice v. Ins. Co., 17 Pa. Super. Ct. 268; Ins. Co. v. Vallandingham, 116 Ky. 287, 76 S. W. 22, 105 Am. St. Rep. 218; Ins. Co. v. Harper, 77 Ill. App. 453; Fletcher v. Ins. Co., 79 Minn. 337, 82 N. W. 647; Randall v. Ins. Co., 10 Mont. 367, 25 Pac. 961; Ins. Co. v. Badger, 53 Wis. 283, 10 N. W. 504; Ins. Co. v. Hall, 1 Kan. App. 18, 41 Pac. 65; Kelly v. Ins. Co., 94 Minn. 141, 102 N. W. 380, 110 Am. St. Rep. 351; 2 Beach on Insurance, § 1244; Bidwell on Insurance, § 1157; 14 R. C. L. p. 1356; 19 Cyc. 875.

The insurance company further contends that, even though Barnett might have stood upon the right to have a fair attempt to agree with the insurance company as to the amount of loss, and might have refused to appoint an appraiser until such ascertainment was attempted, inasmuch as he did not do so, he waived such right, and is bound by the arbitration clause of the policy.

If the right to demand arbitration had not arisen under the terms of the policy, the agreement to...