100 Kan. 574 | Kan. | 1917
The opinion of the court was delivered by
These are actions upon an appraisal and award by arbitrators appointed under the provisions of insurance policies issued by the defendants covering loss by fire on plaintiffs’ stock of merchandise. The assured and the insurance companies having disagreed on the amount of loss, an agreement was signed submitting the loss to two appraisers; A. M. Smith being named by the assured, and H. W. Potts by the .defendants. In accordance with the provisions in the policies the two appraisers duly appointed John C. Dieckman as umpire. The petitions alleged these facts and that the appraisers and umpire had viewed the premises and estimated and appraised the loss, the appraisers submitting their differences to the umpire, and that on a certain day the loss was ascertained by a written award signed by Smith and the umpire Dieckman; it set forth the amount awarded and alleged that by reason thereof the defendants were liable for the proportionate amount of the loss sued for.
The answer alleged that the appraisal and estimate was false and fraudulent, and in equity and conscience should be set aside. The reply in each case was a general denial. The plaintiffs recovered judgments from which the insurance companies appeal.
The evidence tended to show that the two appraisers, on a certain Sunday, agreed upon an amount which they would award but postponed signing the award because they thought it would be invalid if signed on Sunday, and therefore arranged to sign the papers the following day. Afterwards Smith, the appraiser representing the assured, refused to sign, stating
The first contention is that the award is absolutely void because of the failure to determine and report in separate column's the actual cash value of each article at a definite sum per yard, pound, bushel or gallon. The agreement for submitting the loss to appraisers contained this provision:
“The appraisers shall then determine the actual cash value of each article and place the damages on each at a definite sum per yard, pound, bushel or gallon, etc., as the case may require in their proper columns.”
It is claimed no attempt was made to comply with this provision. On the other hand, it is said the defense was not pleaded and that the evidence showed a substantial compliance with the provision except the requirement that each item be set out in separate columns; as to this, it is claimed the printed blank furnished by the insurance companies and,upon which the appraisal was intended to be made did not contain the “proper columns” referred to in the agreément for setting down the items of damage in detail. The failure .to comply in-every particular with this provision as to procedure would not of itself render the appraisal void. Besides, it was required only in so far as deemed necessary by the appraisers. If in good faith they had made their award and wholly ignored the provision, an answer to an action on the award alleging in
Another ground upon which it is claimed the award is void is, that the appraisers allowed $1600 for that portion of the stock totally destroyed, although the umpire and appraisers “neither asked nor received any statement or evidence of the character or value of the goods wholly destroyed.” In two of the cases the question appears to have been gone into quite thoroughly, and the umpire and appraiser who made the award testified they examined remnants or pieces of goods found in the ashes, were shown inventory bills and invoices of the stock, and made their estimate from these. Some of the stock, although included in the portion totally destroyed as to value, was not entirely consumed.
The burden rested upon defendant in each case to show that the award was false and fraudulent. In the two cases where the evidence established the manner in which the value of the goods totally destroyed was arrived at, the claim that the appraisers neither called for nor received any evidence upon the subject was disproved. In the one case where no evidence was offered on this question the prima facie effect of the award must be held sufficient.
Tt is claimed that the award is void because one appraiser called in the umpire and in the.absence of the other appraiser they made the award. It is insisted that the insurance companies had a right to a representative who would participate in all the steps leading to the award, .notwithstanding the provisions in the agreement that any two of the three may make
While plaintiffs’ proof of loss offered by defendants might have been admitted in evidence, since it stated the amount of the loss at a sum less than that found by the appraisers, we think the exclusion of it was not prejudicial. If it had been admitted, there was not sufficient evidence to sustain the claim of a fraudulent award. The amount claimed in the preliminary proof of loss, submitted as a condition precedent and in compliance with one of the conditions in the policy, did not preclude the assured from showing a greater loss, unless the insurer was misled by or changed its position in reliance on the statements in the proof of loss, and there was no claim to this effect. (19 Cyc. 854.)
The answer.in each case alleged that the award was false and fraudulent and admitted the other allegations in the petition. The defendant had the burden of proof. The court therefore erred in ruling to the contrary and in denying defendant the right to open and close. We have held that this error is seldom of sufficient importance to justify a reversal where both sides have every opportunity to introduce their testimony. (Bank v. Brecheisen, 98 Kan. 193, 196, 157 Pac. 259, and cases cited in the opinion.)
The judgment is affirmed.