Young v. Pennsylvania Fire Insurance Co.

• Decision Date: 03 July 1916
• Citation: 187 S.W. 856,269 Mo. 1
• Parties: LULU YOUNG v. PENNSYLVANIA FIRE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

187 S.W. 856

269 Mo. 1

LULU YOUNG v. PENNSYLVANIA FIRE INSURANCE COMPANY, Appellant

Supreme Court of Missouri, First Division

July 3, 1916 ^[*]

Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.

Affirmed.

Ryan & Thompson for appellant.

(1) This suit was premature. The action under the policy could not be brought until more than sixty days after the proofs of loss. The question of waiver by defendant does not arise. The defendant was willing to pay the award and no more, but that gave the plaintiff no right to bring suit before the expiration of the sixty days as for a total loss. Further the finding of the jury was that there was not a total loss. We find no insurance case in Missouri just in point but the general rule that a cause of action cannot be maintained because the obligation has not accrued is laid down in these cases: Heard v. Ritchey, 112 Mo. 516; Turk v Stahl, 53 Mo. 437; Mason v. Bernard, 37 Mo 385-391; Bush Cons. Co. v. Withnell, 190 Mo.App. 44; Lawler v. Vette, 166 Mo.App. 352; Brown v Shuck, 27 Mo.App. 351; Vandike v. Maddix, 23 Mo.App. 192; Duryee v. Turner, 20 Mo.App. 34; Grier v. Fox, 4 Mo.App. 522. Said cases approve the method followed in this case of raising the question, to-wit under a general denial by demurrer to the evidence. (2) The court erred in overruling the defendant's demurrer to the reply. The award was not void but at most voidable, and plaintiff's relief, if any, against the appraisement could only have been awarded in a court of equity. Sec. 1812, R. S. 1909, does not apply. Shoe Co. v. Phoenix Co., 178 S.W. 246; Althoff v. Transit Co., 212 Mo. 166; Courtney v. Blackwell, 150 Mo. 245; Hancock v. Blackwell, 139 Mo. 445; Ochs v. Railroad, 130 Mo. 77; Blair v. Railroad, 89 Mo. 383; Finley v. Finley, 11 Mo. 624; Kaplan v. Niagara Co., 65 A. (N. J.) 188; Ins. Co. v. Ries, 80 Ohio St. 282; Fire Assn. v. Allesina, 45 Ore. 158; Michels v. Western U. Assn., 129 Mich. 424; N. B. & M. Ins. Co. v. Lathrop, 70 F. 429; Sec. 1812, R. S. 1909. (3) The courts look with approval on submitting the amount of loss to appraisal, and if the appraisers act fairly, and reasonably, in examining into the loss and making their award, and are animated in good faith by a desire to reach a fair award their conduct and conclusion will be upheld. It is presumed they have done their duty and their award will not be set aside save on clear and convincing evidence of fraud, misconduct or mistake. Kent Co. v. Ins. Co., 165 Mo.App. 45; Stevens v. Ins. Co., 120 Mo.App. 104; Sebree v. Board of Education, 254 Ill. 438; Liverpool Co. v. Goehring, 99 Pa. 13; Steel Co. v. Ins. Co., 87 F. 733; Vincent v. Ins. Co., 120 Iowa 272; Hall v. Ins. Co., 57 Conn. 105. (4) The conduct of the appraisers and umpire here in taking the estimates of mill men, painters, etc., into consideration in making up their award was proper. The appraisers are the exclusive judges of what evidence they needed in reaching a conclusion, the agreement of submission not providing for any hearing. Liverpool Co. v. Goehring, 99 Pa. 13; Steel Co. v. Ins. Co., 87 F. 733; Sebree v. Board of Education, 254 Ill. 438. The evidence here shows that Young, himself, got an estimate for his appraiser, Hurster, which the latter presented to his colleagues. (5) The court erred in submitting to the jury the question of the validity of the award. Even if the award could be attacked by the reply, the evidence failed to support the charges and justify setting aside the award. Authorities under points three and four. (6) The court erred in holding that it had no jurisdiction to send the jury to St. Louis, to inspect the premises. (a) In not exercising its discretion and determining upon defendant's application, whether or not the jury should be sent to St. Louis to inspect the premises The court had that discretion. Ellis v. Railroad, 131 Mo.App. 400; Springer v. Chicago, 135 Ill. 552; 45 Central Law Journal, 51; 26 Central Law Journal, 436. (b) The court should have, under the evidence, and the circumstances as developed, exercised discretion and sent the jury to St. Louis to inspect the premises. (7) The court should not have admitted evidence as to attorneys' fees and should have instructed the jury there could be no recovery of damages or attorneys' fees under Sec. 7068, R. S. 1909. There was no evidence to warrant finding a vexatious refusal to pay the loss; and besides the jury did not award plaintiff all she had demanded. Fager v. Union Ins. Co., 189 Mo.App. 464-9; Weston v. Ins. Co., 191 Mo.App. 282; Rogers v. Indemnity Co., 189 Mo.App. 82; Kahn v. London Corp., 187 Mo.App. 216; Patterson v. Ins. Co., 174 Mo.App. 37-44; Blackwell v. Ins. Co., 80 Mo.App. 75.

Reynolds & Harlan and Leahy, Saunders & Barth, Amici Curiae.

Frank H. Haskins and Fauntleroy, Cullen & Hay for respondent.

(1) The defense that an action on an insurance policy is prematurely brought is an affirmative defense of which defendant cannot avail itself under a general denial. Giboney v. Ins Co., 48 Mo.App. 185; Burgess v. Ins. Co., 114 Mo.App. 188; Meyer Bros. v. Ins. Co., 73 Mo.App. 166; Miles v. Casualty Co., 115 N.Y.S. 1 (a) The provision that loss shall be payable sixty days after proof of loss is waived by such action of the company as waives proof of loss. Jensen v. Ins. Co., 116 N.W. 286; Preferred Accident Co. v. Fulding, 83 P. 1013. (b) The insurance company's failure to furnish blank forms of proofs of loss waived its right to defend for want of proofs of loss. The answer does not aver that such blank forms were furnished, and hence no issue as to proofs of loss is in the case. R. S. 1909, secs. 7028, 7029; Bank v. Assurance Co., 106 Mo.App. 114; Meyer Bros. v. Ins. Co., 73 Mo.App. 166. (c) The defendant waived its right to demand proofs of loss by demanding and securing an appraisal. Branigan v. Ins. Co., 102 Mo.App. 70; Bank v. Ins. Co., 109 Mo.App. 654; Murphy v. Ins. Co., 70 Mo.App. 78; Ross v. Ins. Co., 114 P. 1054; George Dee & Sons Co. v. Ins. Co., 73 N.W. 594. (d) When once waived, the requirement that proof of loss should be furnished is eliminated from the policy and the voluntary furnishing of proofs by the plaintiff is a superfluous act and does not enlarge the time when the policy falls due. Carp v. Ins. Co., 116 Mo.App. 543; Burgess v. Ins. Co., 114 Mo.App. 168; Roberts v. Ins. Co., 94 Mo.App. 149; Porter v. Ins. Co., 62 Mo.App. 520. (e) The answer of the defendant admits liability for the amount of the award, and this admission is in substance and effect a tender, and the plaintiff is estopped from contending that the suit is premature. Giboney v. German Ins. Co., 48 Mo.App. 185; Eagan v. Martin, 81 Mo.App. 679; Bambrick v. McCormick, 157 Mo.App. 199. (2) The award may be attacked at law. An "arbitration" or "appraisal" under an insurance policy does not fall within the purview of statutes or common law prescribing the formal requisites of an "arbitration and award," and hence may be set aside without resort to equity. Zallee v. Ins. Co., 44 Mo. 530; Paint Co. v. Ins. Co., 165 Mo.App. 30; Shoe Co. v. Assur. Co., 178 S.W. (Mo. App.) 246; Garred v. Doniphan, 10 Mo. 161; Tiffany v. Coffee, 142 Mo.App. 210; Ins. Co. v. Darragh, 128 F. 890; Sears v. Ins. Co., 149 Mass. 345. This question was attempted to be raised only by a demurrer filed a moment before the case was called and after the case had, on application of defendant, been continued several times, and was properly overruled as being filed too late. Stonemets v. Head, 248 Mo. 243. (3) The statute applies to such settlement. The term "settlement" as used in the statute does not necessarily mean payment or satisfaction, though it may mean that. It frequently means adjustment, arrangement. A "settlement" is a contract between two parties by means of which they ascertain the state of the accounts between them and strike a balance. Toombs v. Stockwell, 131 Mich. 633; Beall v. Water Co., 185 F. 179; Jackson v. Ely, 57 Ohio St. 450. (4) the award was invalid. While appraisers may not always be required to take evidence as to the damage to property visible and open to their inspection, but as to property wholly destroyed or not so visible and open to inspection, appraisers necessarily act upon information or evidence, and both the insured and the company should receive notice of time and place of hearing, and a refusal in such case to hear evidence vitiates the award. Jones v. Ins. Co., 171 S.W. 28; Stout v. Assurance Co., 56 A. 691; Ins. Co. v. Hegewald, 66 N.E. 902; Kaiser v. Ins. Co., 69 N.Y.S. 344; Kernon v. Ins. Co., 44 N.E. 698; Ins. Co. v. Jester, 132 P. 130; Ins. Co. v. Hamilton, 48 Ill.App. 593; Embry's Exr. v. Embry's Devisees, 102 S.W. 239; Ins. Co. v. Garrett, 125 F. 589; Ins. Co. v. Payne, 46 P. 315; Ins. Co. v. Moore, 46 P. 1131; Mason v. Fire Assn., 122 N.W. 423; Christianson v. Ins. Co., 88 N.W. 16; Carlston v. Ins. Co., 94 P. 756; Ins. Co. v. Romeis, 15 Ohio C. C. 697; Stemmer v. Ins. Co., 33 Ore. 65, 27 Ins. L. J. 972; Bank v. Ins. Co., 85 Me. 68; Redner v. Ins. Co., 92 Minn. 306. (5) The award is void because the appraisers were partial and not disinterested; the company's adjuster secured the appointment of its appraiser by fraudulent misrepresentations and suppression, because the umpire exceeded his jurisdiction and the appraisers adopted a wrong rule of law, and the award was so inadequate as to shock the conscience of fair-minded men. Kiernan v. Ins. Co., 44 N.E. 698; Pierce v. Sun Ins. Office, 147 N.Y.S. 947; Bradshaw v. Ins. Co., 137 N.Y. 137; Bradshaw v. Ins. Co., 32 N.E. 1055; Hall v. Assurance Co., 133 Ala. 637; Hickerson v. Ins. Co., 33 S.W. 1041, 32 L. R. A. 172; Brock v. Ins. Co., 61 N. W. (Mich.) 67, 26 L. R. A. 623, 47 Am. St. 562; Bernhard v. Ins. Co., 79 Conn. 388; Jerrells v. Ins. Co., 82 Kan. 320; ...