Van Winkle v. Continental Fire Ins. Co.

• Decision Date: 15 March 1904
• Citation: 47 S.E. 82,55 W.Va. 286
• Parties: VAN WINKLE v. CONTINENTAL FIRE INS. CO.
• Court: West Virginia Supreme Court

47 S.E. 82

55 W.Va. 286

VAN WINKLE v. CONTINENTAL FIRE INS. CO.

Supreme Court of Appeals of West Virginia.

March 15, 1904

Submitted February 23, 1904

Syllabus by the Court.

1. In a suit to set aside an award because the arbitrators refused to receive or hear evidence, and it appears from the record that plaintiff had full notice of the meetings of the arbitrators and was called upon several times by one of the arbitrators during the work of the arbitrators, to whom plaintiff furnished some bills to be used in evidence, and said he had further evidence which he desired to present, but failed to appear before the arbitrators or offer any further evidence, the arbitrators cannot be held to have refused to hear or consider his evidence.

2. While it is a general rule that, if appraisers refuse to hear or consider material evidence, it will be fatal to the award it is also true that evidence must be offered before it can be rejected.

3. Where the plaintiff claimed to have papers material to his interests to present as evidence before the arbitrators, but failed to appear or present them, it cannot be said that the arbitrators rejected material evidence.

4. Prior service of an arbitrator in a similar capacity does not render him incompetent, or invalidate an award in which he joined, in the absence of evidence showing that he was prejudiced.

5. Mistake of judgment in arbitrators is not sufficient evidence of improper conduct on their part to justify the setting aside of their award by a court of equity.

6. An arbitrator cannot contradict an award which he has signed.

Appeal from Circuit Court, Wood County; L. N. Tavenner, Judge.

Bill by W. W. Van Winkle against the Continental Fire Insurance Company. Decree for plaintiff, and defendant appeals. Reversed.

Harry P. Camden, for appellant.

Van Winkle & Ambler and Mason G. Ambler, for appellee.

MCWHORTER J.

W. W Van Winkle was the owner of the one undivided half interest in a building in the city of Parkersburg known as the "Academy of Music," upon which interest he had two policies of fire insurance, of $2,000 each--one in the Continental Insurance Company, and the other in the Westchester Fire Insurance Company. In December, 1895, while the said policies of insurance were in force, the said building was partially destroyed by fire. Each of the policies contained a clause by which it was agreed that, in the event of disagreement in the amount of loss, the same should be ascertained by two competent and disinterested appraisers; the insured and the company each selecting one, and the two so chosen to select a competent and disinterested umpire; the appraisers together then to estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, were to submit their differences to the umpire. The award in writing of any two to determine the amount of such loss. The insured and the said companies, failing to agree upon the amount of loss, entered into the following agreement in writing for submission of their differences to arbitration:

"This agreement, made and entered into by and between W. W. Van Winkle of the First part, and the Insurance Company or Companies, whose name or names are signed hereto, of the second part, each for itself and not jointly.

Witnesseth, That Stephen Davidson and George Hodgden shall appraise and ascertain the sound value of and the loss upon the property damaged and destroyed by the fire of December 9, 1895, as specified below. Provided, That the said appraisers shall first select a competent and disinterested umpire who shall act with them in matters of difference only. The award of any two of them, made in writing, in accordance with this agreement, shall be binding upon both parties to this agreement as to the amount of such loss.

It is expressly understood that this agreement and appraisement is for the purpose of ascertaining and fixing the amount of sound value and loss and damage only, to the property hereinafter described, and shall not determine, waive, or invalidate any other right or rights of either party to this agreement.

The property on which the sound value and the loss or damage is to be determined is as follows, to wit:

W. W. Van Winkle. On his undivided one-half interest in the two and three story brick, slate and metal roof building, known as Academy of Music occupied on first floor for mercantile purposes; one room on third floor occupied by tenants as private club or lodge room; one room on second floor as clubroom by tenants residue of building occupied by owners as public hall, dressing rooms, ticket office and manager's office for same situate on the northwest side of Juliana Street, between Fifth and Sixth Streets in Parkersburg, West Va.

It is further expressly understood and agreed that in determining the sound value and the loss or 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, or 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.

In Witness Whereof, we have hereunto set our hands, at Parkersburg, W. Va., this 3d day of January, 1896. W. W. Van Winkle. S. T. Carter for Westchester Fire Insurance Co. of New York. E. E. Cole for Continental Insurance Co., of New York."

The said appraisers mentioned in the agreement were duly sworn on the 6th day of January, 1896, to "act with strict impartiality in making an appraisement and estimate of the sound value and the loss and damages upon the property hereinbefore mentioned in accordance with the foregoing appointment, and that we will make a true, just, and conscientious award of the same according to the best of our knowledge, skill, and judgment. We are not related to the assured, either as creditor or otherwise, and are not interested in said property, or the insurance thereon. [Signed] Stephen Davidson, George Hodgden, Appraisers." The said appraisers then selected as umpire M. F. Geisey, of Wheeling, to settle matters of difference between them in said appraisement. On the 14th of January, 1896, at the request of Appraiser Davidson, and with the consent of George Hodgden, C. T. Hickman, of Clarksburg, W. Va., was substituted for said Geisey as umpire; and on the 15th day of January said Hickman accepted the appointment of umpire, and took the oath to act with strict impartiality in all matters of difference only that should be submitted to him in connection with his appointment, and that he would give a true, just, and conscientious award, according to the best of his knowledge, skill, and judgment, and that he was not related to any of the parties to the agreement, nor interested, as a creditor or otherwise, in the property or insurance. After having discharged their duties under said agreement and appointment the said appraisers and umpire made the following award:

"To the Parties Interested: 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 to be twelve thousand dollars, and the loss and damage as a whole to be six thousand twenty-nine and 84/100 dollars. Witness our hands this 15th day of January, 1896. Stephen Davidson, Geo. Hodgden, Appraisers. C. L. Hickman, Umpire."

At the June rules, 1896, W. W. Van Winkle filed in the clerk's office of the circuit court of Wood county his bill in chancery against the said insurance companies, George Hodgden, Stephen Davidson, and C. L. Hickman, charging that the said award was void and should be set aside by reason of misconduct of the appraisers, and by reason of mistakes set forth in the bill, because of miscalculations therein and omissions of property that should have been included, by calculations of short quantities when true quantities should have been inserted, for unfairness and injustice, and praying that, if the court could not revise the award, it should be set aside and rendered null and void, and that the court would decree plaintiff entitled to the full amount of the policies, and that the court decree the $2,000 against each of said companies, with interest from the 2d day of March, 1896, and that the said several parties mentioned be made parties to the bill, and be required to answer the same under oath, and for general relief.

The said defendant companies, on the 20th of July, filed their joint demurrer to the plaintiff's bill, in which the plaintiff joined, and afterwards, on the 8th of August, 1896 the demurrer was overruled by the court, and leave granted defendants to file their answer, and on the 7th day of September the said defendant companies filed their joint and separate answer, in which they denied the material allegations of the bill. Depositions were taken and filed in the cause, and on the 5th day of February, 1903, the cause was heard on the process duly executed, and the orders and proceedings had in the cause, the said answer and general replication, and the bill taken for confessed, and set for hearing at the rules as to the other defendants, except Hodgden, and upon the depositions taken on behalf of the parties respectively, on the orders and decrees theretofore made and the papers formerly read; and the court, being of opinion that the award complained of in plaintiff's bill was unfair, unjust, and improper, and that the same should be set aside as a fraud on the rights of plaintiff, decreed that the award dated the 15th of January, and purporting to award to plaintiff the sum of $3,010.42, be vacated, annulled, and set aside, and held as null...