126 Ky. 730 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
The appellant issued to the appellee a fire insurance policy in the sum of $3,000 on its bank building in Hazard, Ky. On the 25th day of Márch, 1905, the building was partially destroyed by. fire. Formal proofs of loss were given by the bank to the insurance company on the 6th day of April, 1905. On April 13, 1905, the company demanded the appointment of appraisers to determine the amount of the damage to the building. This procedure was under a clause in the policy to be hereafter noticed. Each party selected an appraiser, and these selected an umpire to determine all matters upon which they could not agree. The appraisers being unable to agree, the umpire and one of them fixed the damage at $2,508.38 and awarded that amount to the bank. The insurance company refused to pay the award so made, and
The first defense interposed was the want of jurisdiction in the Perry circuit court to determine the controversy. The appellee bank is .a resident of Perry county, Ky., and its building is situated in the county seat, Hazard. Appellant has no agent in Perry county, but has an agent at Mount Sterling, Montgomery county, Ky., where the policy was written. The theory of the appellant as to the want of jurisdiction in the Perry circuit court is based upon its claim that the contract with its agent was made in Montgomery county, where the policy was written. To this proposition the appellee answers that this is an action upon the award of arbitrators, and that this award was made in Perry county and not in Montgomery, and therefore the Perry circuit court and not the Montgomery circuit court had jurisdiction to try ■ the issues between the parties. The evidence clearly shows that the appraisal and award were made in Perry county, and this being a suit upon the award, we are of opinion that the position taken by appellee is sound. The very question we have here arose in the case of Mutual Fire Insurance Company of New
Appellant insists that, under the terms of the policy, it had the right to restore the building to its former condition in lieu of paying the award which was made, and that it - offered to do so, but that the appellee bank refused to allow it to exercise this privilege. The provision in the policy as to this question is as follows: “It shall be optional, however, for this company to. * * * repair, rebuild or replace property lost or damaged with other of like kind or quality within a reasonable time,, on giving notice within thirty days after the receipt of the proofs herein required-of its intention so to do.” The only notice evér given to the bank by the appellant of its intention to exercise its right to rebuild the property is contained in a letter dated May 26, 1905, which is as follows: “Mt. Sterling, Ky., May 26th, 1905. Hazard Bank, Hazard, Ky.—Gentlemen: I am in receipt of letter' from the company with regard to loss under policy 122787, requesting me to advise you that the award of the appraisers is not satisfactory, and that the company will exercise its right to repair ox replace the building as stipulated in the policy, unless you are willing to accept what it would cost us to repair the building. The company authorizes me to make you a cash offer of $1,200 as a compro-' mise. Kindly advise me promptly whether or not you accept this proposition, so. that I may have draft sent forward at’ once., and in the event you decline I can start Mr. ‘Williams on the job, as. I have already agreed
The award sued on is assailed on the ground that Jesse Morgan, the appraiser selected by the bank, was a stockholder and director therein, and one of its attorneys at the time he acted as appraiser, and that A. S. Henry, who was the umpire selected, was incompetent to act, and that the award made by Morgan and Henry was not signed in the presence of Williams, the other appraiser; and for the additional reason that the umpire, Henry, did not rely upon his own judgment as to the amount of damage, but consulted ■ with an outside person, a professional carpenter whom he secured to come from Lexington, Ky., and view the premises. The appellant wholly failed to establish by any evidence that Morgan was an incompetent appraiser, or interested in the' bank at the time he was chosen and acted as appraiser, but, on the contrary, its evidence affirmatively disproves the disqualification of the appraiser relied on.
Judgment affirmed.