106 Tenn. 558 | Tenn. | 1901
This is a suit upon a policy of fire insurance. Verdict and judgment were in favor of plaintiff for the sum of $1,064.32, amount of the policy and interest. The company appealed, and, among other assignments of error, it is urged that there is no evidence to support the verdict. The policy in suit insured the plaintiff against direct loss or damage by fire to their stock of carpets, furniture, etc., contained in their storehouse on Union Street, in the city of Nashville. The aggregate insurance on their stock was $31,000, covered by twenty-three policies, issued by seventeen different companies. The concurrent insurance was authorized by the several policies, and no question is made in respect of additional insurance.
Companies representing $15,000 of 'this insurance settled and adjusted their liability without suit.
The fire occurred on December 9, 1898, and there is evidence tending to show that the loss sustained was largely in excess of the entire insurance. The value of the stock at the time of the fire is shown by the following table, to wit:
(1) Inventory June 1, 1898.'....$29,523 40
Í2) Goods purchased between June 1, aiid December 9, 1898 . :. 30,458 69
(3) Goods sold, charged, and not delivered . -4J3 00
(4) Goods held in trust for others.... 85 00
(5) Appreciation by advance in prices. 4,465 49
Total $65,035 58
These goods cost the sum. 23,147 00
Total value at time of fire... 41,888 58
These items are sustained by ample evidence to have warranted the jury in finding them correct.
It is objected that the item of appreciation of stock amounting to $4,465.49 was not included in the statement of loss submitted by the company to the insurance agents on Monday succeeding the fire. That is explained, however, by the fact that the first statement was made up hurriedly, and this item was overlooked.
It was stated and claimed at the first interview between the plaintiff and the insurance adjusters, and steadily insisted on throughout the negotiations that followed. It is supported by material evidence, and must be held to have been established by the verdict of the jury.
'Che proof shows that on Monday, December 12, succeeding the fire, adjusters representing the various insurance companies interested met at Nashville and entered into an organization, electing a chairman and secretary. This board adopted the following resolutions, to wit:
“1. In all matters of difference, a majority as represented by the insurance companies present shall rale.
“2. That stock in basement and grade floor
This board, it appears, continued in session from day to day until the twenty-second of December, when they entered into an agreement by resolution “that there should be no independent action, but that they all should communicate and confer with each other.”
It appears that on Tuesday succeeding the fire there was a conference between the adjusters and representatives of plaintiff, and a discussion ensued as to what disposition should be made of the salvage or damaged goods saved from the fire. A committee was appointed to consider this question, and after visiting the premises and inspecting the condition of the damaged goods, the committee recommended that the salvage in the basement and on the grade floor be offered for sale to the highest bidder. An advertisement was accordingly made in the public prints, but mo acceptable bid was received.
It appears that about this time the adjusters concluded to demand an appraisement of the saved goods, and such an appraisal was proposed to the representatives of the insured. The insured insisted that the first step in an appraisement was to ascertain the value of the entire stock of goods at the time the fire occurred, and ■ that at the same time they could find out the value of the goods saved, aud thus settle the whole loss. The
The adjustors had before them all the policies, books, papers, and invoices of the insured, including a statement of the loss. They inspected the wreck and saw the salvage, but they made no estimate of its value, nor a statement of the value of the stock at the time of the fire, nor any estimate of loss, nor did they agree to the correctness of any item in plaintiff’s statement of loss. The adjusters simply demanded an appraisement of the salvage, but not an appraisement of the entire loss.
It further appears that on December 16 the several adjusters made a joint demand for appraisal as follows, to wit:
“A difference having arisen in the amount of the damage done upon stock of goods by reason of a fire which occurred on December 9, 1898, we now demand that the amount of these damages be submitted to arbitration as provided for in the section of the policies under which you make your claims.” This demand was signed jointly by all the special agents and adjusters representing the companies interested. The plaintiff understood this letter to be a joint demand for an appraisal of the salvage alone, hence, in its reply, after referring to the fact that its statement of loss
In view of what had been transpiring in the negotiations of the board and the insured for a settlement, the joint demand was understood by the plaintiff, as a demand for the appraisal of the salvage alone. Plaintiff's in their reply so informed the adjusters, and the latter did not correct this impression. They made no reply to the insured’s letter. However, the oral negotiations and conferences continued until December 22, when further effort at a settlement was ‘ suspended. There is evidence tending to show that, in the meantime a representative of the insured met Col. Young, chairman of the board of adjusters, and asked him if there was going to be any trouble about the salvage, and the latter responded, “Gro ahead and handle the salvage; you have a per-
Thus matters rested until January 16, 1899, when the special agents and adjusters made separate and distinct written demands for an appraisal. This was done in all likelihood to remedy any legal objection that might be made to the joint demand for an appraisal which they united in making December 16th ult. On January 20 the plaintiff transmitted to the home office of the defendant company formal proofs of loss resulting from said fire. The defendant company replied January .31, .1899, acknowledged receipt; and concluding its letter as follows: “We renew our previous demand for an appraisal of the value of the goods saved from the fire and the damage done to them, in order that compliance with the terms of the contract between you and the company may be had, differences having arisen
The plaintiff, on February 21, wrote to defendant company acknowledging receipt of letter of January 31 furnishing an inventory of saved goods, with an estimate of their value. This letter, after dealing with certain matters at issue, states, viz.:
“In conclusion we beg to submit that the right of the Palatine Insurance Company to demand an appraisal has, in our judgment, been waived, but we are still ready to agree to an appraisal, and consent that it be had according to the terms of the policy. You may, therefore, come forward and at once enter into a final arrangement with us for an appraisal.”
The defendant company replied to this letter, in which they stated that the fact that a part of the salvage had been disposed of would present a serious obstruction in the way of an appraisal, and inquired whether it was true that the salvage had been disposed of. There is evidence tending to show that the defendant company had been apprised of this fact for almost six weeks, and yet it expresses surprise at the statement of this fact in the plaintiff’s letter. On March 3, 1899, plaintiff replied that full evidence of the value
“Therefore we again express our assent to appraisal, and trust it will be no longer delayed by you,”
Defendant company replied to plaintiff’s letter on the seventh of March, stating that they would not enter into a “fragmentary appraisal after plaintiff had sold and disposed of a part of the salvage.” This letter closed the correspondence, and thereupon plaintiff brought this suit.
The principal ground relied on by defendant company to defeat the collection of the policy is that the assured refused to submit to an appraisal or arbitration as provided by the insurance contract, and that this was a condition precedent to any right of action on the policy, or liability against the defendant. The provisions of the policy necessary to be noticed, in order to an intelligent understanding of the controversy, are the following: ' m
“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation; however caused, and shall, in no event, exceed what it would then cost the, insured
The “hereinafter provided” of this original' and leading clause reads as follows: “In the event of disagreement as ' to the amount of the loss, .the same shall, as above . provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall elect a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, ' stating sep
It tvas assumed by the trial Judge in his charge to the jury that the stipulation of the policy in respect of appraisal was a condition precedent to any right of action on the policy. This proposition is seriously controverted in this Court by counsel for the insured, his contention being that such stipulation is a mere collateral
It is argued that the policy provides that ascertainment or estimate shall be made by both parties, and if they differ as to their respective estimates, then they can have recourse to appraisal “as hereinafter provided,” and that it is hereinafter provided that appraisal is dependent, first, upon the event of disagreement, and, second, upon the fact of its being required by the company. In other words, that it is a condition optional with the company, and does not establish a forfeiture for a failure to observe its conditions.
It is then angued that in order for a failure to arbitrate to operate against the insured, the necessity for an award must be expressly made a condition precedent in the policy, citing Reed v. Ins. Co., 103 Iowa, 307; Reed v. Washington
In. Insurance Company v. Alvard, 61 Fed. Rep., 755, it was beld chat in order to make such award a condition precedent to tbe right of maintaining suit, it must be so expressed in tbe policy, unless necessarily implied from its terms. A mere provision in tbe policy that tbe amount to be paid in case of disagreement shall be submitted to arbitration does not prevent tbe insured from maintaining an action, unless tbe policy further provides that no action shall be maintained until afterward. Such agreement to submit to arbitration is regarded as a collateral and independent agreement, a breach of which, while it will support a separate action, cannot be pleaded in bar to an action on the principal contract. “There is nothing in the terms of the policy,”. said the Court, “which expressly, or by implication, forbids the insured from bringing suit until after the amount of the loss had been submitted to arbitration and an award had been made, and therefore we must consider the provisions in the policy relating to this object as constituting a collateral and independent condition, and not one which was' precedent to maintaining an action.”
In looking, to this case it will be seen that the clause in the policy on the subject of arbitration or appraisal is identical with the provisions of defendant’s policy, on the same subject, but it
In Hamilton v. Liverpool, London & Globe Ins. Co., 136 U. S., 242, it was held that a condition in a policy of fire insurance that any differences arising between, the parties as to the amount of loss or damage of the property insured shall, be submitted, at the written request of either party, to the appraisal of competent and impartial persons, whose award shall be conclusive as to the amount of loss or damage only, and shall not determine the question of the liability of the insurance company, etc., and that until such appraisal and award no. loss shall be payable or action maintainable, is valid. Said Mr. Justice Gray, who delivered the opinion of the Court, “The appraisal, when requested in writing by either party, is distinctly made a condition precedent to the payment of any loss, and to the maintenance of any action.”
The question again arose in Hamilton v. Home Ins. Co., 137 U. S. Mr. Justice Gray again delivered the opinion of the Court, and said: “This case resembles, in some aspects, that of Hamilton v. Liverpool, London & Globe Ins. Co., 136 U. S., but it is essentially different in this
It is conceded that in the policy before us there is no express provision postponing suit until after appraisal or award, but it is assumed that the general clause of the policy is equally as efficacious, namely: “No suit or action shall be brought until after full compliance by the insured with all the foregoing requirements” referring to all the terms and conditions of the policy.
In addition to this the policy provides that “the loss shall not be payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of loss have been received by the company, including award by appraisers, when appraisal has been required.” It is not necessary, as decided in
In Conn. Fire Ins. Co. v. Hamilton, 59 Fed. Rep., the Court said, viz.: “In some of the leading cases, where it was held that the terms of the contract established a condition precedent, there was no express provision that an action should not lie before the award was made. A condition necessarily implied from the terms of the contract is treated as equivalent to an express agreement that no action shall be brought until the award is obtained. Tt is always a question of construction. Whatever the language mav be, if the intention of the parties is sufficiently apparent, effect " will be given it.”
In Mosness v. German-Am. Ins. Co., 50 Minn., 341, “the policy provided for the appointment of appraisers in the event of the disagreement between the company and the assured as to the amount of the loss, and also provided that no action could be brought until after full compliance by the assured with all the foregoing requirements,” it was held that arbitration and award was a condition precedent to recover on the policy.
Said the Court, construing together, as they must be Construed, the various provisions found in the
We think, upon a fair construction of the policy now in suit, compliance with the appraisal clause must be regarded as a condition precedent to the maintenance of the suit.
The second assignment is that the Court erred in charging as follows: “It is proper here for the Court to instruct you that until January 16, 1899, there had been no legal demand by the defendant upon the plaintiff for an appraisement in accordance with the terms and conditions of the policy — that is, of an appraisement of the loss, and damage, theretofore the efforts having been made either verbally or by joint demand with the other companies carrying this insurance, neither of which was valid and binding.”
The criticism made upon this charge is twofold. First, that, the Court should have instructed the jury what constituted a legal demand, and let the jury determine from the facts and law as charged by the Court whether or not legal demand for appraisal had been made. Second, that as the policy itself does not require a written demand for an appraisal, a verbal demand would have been sufficient.
The record shows that the only demand for an appraisal made by the defendant .company prior to January 16, 1899, was the joint demand which it made in connection with the other companies on December 16, 1898. Eleven agents, representing as many different companies, joined in the demand upon the plaintiff that the amount of his damages be appraised as provided for in the section of the policies under which the loss was claimed. This was not a legal demand.
Says Mr. Joyce in his work on insurance, Sec. 8245, viz.: “A joint demand for an appraisal by several insurance companies is not within the terms of a policy issued by one of the companies pro
In Connecticut Fire Ins. Co. v. Hamilton, 59 Fed. Rep., it appeared that the agents of twelve insurance companies interested in the loss jojned in a demand upon the insured that the question of the value of and the loss upon the stock be submitted to competent and disinterested persons chosen as provided for in the several policies - of insurance under which claim is made, etc. Said the Court: “That was not a demand for an appraisal by the insurance companies, such as its policy gave it the right to make. It (the company) did not. acquire its rights in any respect from the policies of other companies, and it had no legal concern with their disputes, or the mode to be adopted for their settlement, and had no obligation to champion their cause or to mix its controversy with theirs, and the insured was not bound to accept such proposition for determining the value and damage as was demanded by the companies, this among them.”
We therefore hold, under the general rule, that
We are also of opinion that any demand for the exclusive appraisal of the salvage was not warranted by the policy. The appraisal or arbitration clause provides that in the event of disagreement as to the amount of the loss,, it shall be ascertained by two competent and disinterested appraisers. The appraisers shall estimate the loss, stating separately sound value and damage, etc. It was never contemplated that either party should have- the right to demand separate and successive appraisals of different kinds of demands entering into the amount of the loss. The object of appraisal is to fix the loss in the aggregate, and this result cannot of course be reached by ascertaining the value of one or more constituent elements of the loss. We are therefore of opinion that the insured was well warranted by the terms of the policy in declining the demand of the company for an appraisal of the salvage alone. Of course we do not hold that the parties could not by consent agree on a partial appraisement.
It appears that on January 16, 1899, the defendant company addressed a letter to the plain-
This communication, it will be observed, con- . tains a separate demand for a general appraisal, and wTas such a demand as the company was authorized to make under the - appraisal clause of its policy. The insured did not at once answer this demand, but transmitted to the company, through its attorney, formal proofs of loss. Some correspondence then followed respecting the proofs of loss, and on February 21 the insured agreed to have an appraisal according to the terms of the policy. Defendant company then declined to enter into an appraisal, upon the ground that the insured had sold and disposed of part of the salvage. There is proof tending to show that the insured at that time still had on hand four-fifths of the salvage, and had disposed of the remaining one-fifth with the knowledge and implied acquiescence of the defendant company, its agents or adjusters, or at least with the knowledge of the Board of Adjusters, who were acting in concert and combination. In this connection counsel for defendant company requested the Court to charge,
Error is also assigned upon the refusal of the trial Judge to give the following instructions to the jury, namely: “The right of the defendant to take its pro rala of the salvage goods at the valuation fixed by the appraisers when an appraisal had been demanded and had, is a valuable right assured to it by the policy or contract, and if, therefore, you find the parties dif
Now we think the instructions asked were properly refused, for the following reasons: First, the proof tended to show that the salvage was sold with the knowledge and acquiescence of the Board of Adjusters, whose action was binding upon the defendant company. That board determined by resolution that the salvage in the basement and on the first floor should be sold, and advertised for bids, but could get no reasonable offer. After-wards ■ Col. Young, chairman of the Board of Adjusters, told a representative of the plaintiff to go ahead and dispose of the salvage. Second, the amount disposed of by plaintiff was but a
As already stated there was $31,000 of insurance upon the property, of which $15,000 had been settled before this suit was brought. The adjusting companies settled upon a basis of $28,-000 as covering the entire loss, the insured to keep the salvage. It was after this partial settlement with the other companies that the insured sold about one-seventh of the salvage, preserving a detailed statement of the articles, their value, etc. The total sum realized on the salvage claimed to have been improperly sold, did not exceed $1,500, which left unsold and still on hand about $10,000 of salvage. Now, upon these facts' the - Circuit Judge instructed the jury, viz.: “The Court instructs you upon this point that the defendant was only interested in said option (that is, the right to take the salvage upon the appraisement) in proportion as the policy issued by it bore to the total number of policies and amounts involved — that is, as one thousand was to thirty-one thousand; and if you should find from the proof that the demand of the defendant, made January 16, for an appraisal was assented to by the plaintiff, who offered to proceed with the same,
We are of opinion that the charge given fully covered this aspect of the case, and that the instructions asked by counsel for defendant company were properly refused.
The next assignment of error is based upon the Court’s charge in reference to the apportionment of the salvage expense. The business of the plaintiff was resumed about April 15, after the fire, and the bulk of the salvage goods were carried with the new stock and sold off as opportunity offered.
The Court charged the jury that it was the duty of the plaintiff to have sold the salvage goods to the best advantage, realizing therefrom as much as possible; that on doing this plain
The objection to the charge is that the salvage is charged with a proper share of the expenses of plaintiff’s entire business after the fire. It is insisted that the sale of the salvage was a mere incident to the general business, and that only such expenses should be allowed plaintiff as were incurred because of and on account of the salvage. The Court, it will be perceived, left it to the jury to say, in view of all the facts, whot would be a proper proportion of the expenses with which the salvage goods should be charged.
In German Bank v. Haller, 19 Pickle, the trustee had put new goods with the trust stock, and expenses, such as store rent salaries, and incidentals, were incurred for both stocks, and the question as to proportioning that expense arose, the trustee insisting that the trust stock should bear it all. This Court said: “We know of no good reason why a trustee engaged in executing
We understand the Court in this instruction to have submitted to the jury the question as to the proper proportion of the expense of the salvage goods, to be determined in view of all the facts surrounding its sale, and we find ' in this instruction no reversible error.
Affirmed.
