Western Assur. Co. v. Hall Bros.

• Decision Date: 19 January 1905
• Citation: 143 Ala. 168,38 So. 853
• Parties: WESTERN ASSUR. CO. v. HALL BROS.
• Court: Alabama Supreme Court

38 So. 853

143 Ala. 168

WESTERN ASSUR. CO. v. HALL BROS.

Supreme Court of Alabama

January 19, 1905

Appeal from Circuit Court, Madison County; Osceola Kyle, Judge.

Action by Hall Bros. against the Western Assurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

London & London and R. W. Walker, for appellant.

Cooper & Foster, for appellees.

HARALSON J.

1. The pleadings in the case were settled in the former three appeals, and when the cause was returned to the circuit court on the last appeal (133 Ala. 637, 32 So. 257), the defendant filed a new plea, numbered 9, in which the defendant set up that "a disagreement as to the amount of loss or damage having arisen between the assured and this defendant, the defendant demanded the selection of appraisers as provided for in said policy; that thereupon the plaintiffs selected as their appraiser one J. T. White, who was then an employé or clerk of the plaintiffs, and notified the defendant of the selection of said White and informed the defendant that said White was their clerk or employé, and thereupon defendant selected as its appraiser one J. C. Lacoste, a citizen and resident of the city of Birmingham, and said appraisers selected William Myers, a citizen and resident of the city of Huntsville, Alabama, as the umpire, as provided for by the terms of the policy. And defendant says that the plaintiffs having selected their said clerk or employé as their appraiser cannot be heard to complain of the selection by the defendant of said Lacoste; and said plaintiffs wrongfully complaining that said Lacoste was a partisan of the defendant, wrongfully prevented said appraisers and umpire or a majority thereof from making an award," etc.

The plaintiffs demurred to this plea, on many grounds, among them, (3), "It appears from said plea that defendant knew that said White was a clerk or employé of the plaintiffs at the time said arbitration agreement was entered into." (4) "It does not appear from said plea that J. C. Lacoste, the appraiser selected by the defendant, was a competent and disinterested appraiser." (10) "The selection by plaintiffs of a person to act as appraiser who was in their employ does not estop them from objecting to the appraiser selected by defendant." (11) "The fact that plaintiffs with the knowledge and consent of defendant selected as an appraiser a person in their employ would not estop them to object to an incompetent and interested appraiser selected by the defendant."

2. The reasons why said plea is not good, can scarcely be better stated than in the grounds thereto set up in demurrer. While White was a clerk of plaintiffs, that fact was made known to defendant when plaintiffs nominated him for an arbitrator. The defendant made no objection to him, on that account, as it might have done, but proceeded to select its arbitrator. This was a waiver of any objection it might have raised to White, on account of his not being disinterested, and it did not authorize defendant to nominate an interested and incompetent arbitrator, and conceal that fact from plaintiffs. 3 Cyc. 617, 619. As soon as plaintiffs ascertained that Lacoste was not disinterested, they had a right to repudiate the nomination, and insist that a disinterested person should be selected in his place. To hold otherwise, would authorize the defendant to take an undue advantage of the plaintiffs, in the matter of the selection of disinterested arbitrators, as provided by the terms of the policy.

3. The plaintiff filed replications to defendant's pleas, 5, 7 and 8. These pleas set up in substance the arbitration provisions of the policy, and that plaintiffs broke up the arbitration after it was entered upon. The third replication set up, that "the said appraisers and said umpire, or one or more of them (referred to in said pleas), were not impartial and disinterested, and were not competent to serve in the capacity for which they were selected, which was unknown to plaintiffs, at the time said agreement of arbitration was entered into, and immediately after the ascertainment of said facts, plaintiffs demanded of said defendant, the selection of disinterested and competent appraisers, in accordance with the terms of said policy which demand said defendant refused." If these facts were true, they furnished a complete answer to said pleas and the demurrer to the replication to them was properly overruled. Western Assurance Co. v. Hall, 120 Ala 547, 24 So. 936, 74 Am. St. Rep. 48; Id., 133 Ala. 637, 32 So. 257; Id., 112 Ala. 318, 20...