82 Kan. 320 | Kan. | 1910
The opinion of the court was delivered by
This was an action on a fire-insurance policy. The plaintiff recovered judgment, and the defendant appeals.
The policy covered a stock of merchandise in the town of Elgin.' The petition alleged that the stock was. destroyed by fire July 31, 1907; that the plaintiff had performéd all the requirements and conditions of the policy-on his part, and that the defendant refused to pay. The answer set up as a defense that after the fire occurred a disagreement arose between the insured and the company as to the amount of the loss, and that the amount had never been determined by appraisers, as provided by the policy. The reply was a general denial.
On the trial the plaintiff was permitted, over the objections of the defendant, to offer evidence showing that following the disagreement as to the amount of the loss appraisers were appointed, the company and the insured each selecting one appraiser, as provided by the terms of the policy, and that the two appraisers were unable to agree upon an umpire, for which reason no appraisement was ever made. The errors com
“In the event of disagreement as to the amount of 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 first select a competent and disinterested umpire; the appraisers together shall then estimate and -appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire, . . . and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have 'been received by this company, including an award by appraisers when appraisal has been required.”
The plaintiff’s evidence which was admitted over the objections of the defendant was in substance that after the fire occurred an adjuster of the company visited him and a disagreement arose respecting the amount of the loss; that appraisers were then appointed, the company selecting Mr. Warren and the insured selecting Mr. Meeker. When the two appraisers met for the purpose of agreeing upon an umpire Mr. Warren suggested a Mr. Potts, who had been the first choice of the adjuster for appraiser, and also handed to Mr. Meeker a list of persons, one of whom resided at Kansas City, another at Newton, and another at Wagoner, Okla. Mr. Meeker stated to him that on account of thq ex
There are cases holding that where there is a failure of appraisers acting in good faith to agree it is incumbent on the parties to appoint other appraisers. (Vernon Ins. Co. v. Maitlen, 158 Ind. 393; Westenhaver v. Ger.-Am. Ins. Co., 113 Iowa, 726.) On the other hand it has been held, on what seems to be the better reasoning,-that where the insured has appointed an appraiser, and without his fault the appraisers fail to agree, he may maintain an action. In Western Assur. Co. v. Decker, 98 Fed. 381, Judge Caldwell said in the opinion:
“The contention of the company is that when the arbitrators failed to agree it was the duty of the insured to propose a new selection of arbitrators, and that, not having done so, and not having appointed an arbitrator the second time, he can not maintain this action. The terms of the policy are satisfied when the insured, acting in good faith, appoints an appraiser. If the appraisement falls through by disagreement of the appraisers, without any fault of the insured, he has discharged his covenant and satisfied the requirements of the policy,' and may then resort to the courts to have his damages assessed.” (Page 382.)
“We are unable to subscribe to this doctrine, so far as the policy upon which the present suit has been brought is concerned. The contract here only requires the parties to choose appraisers once, and not twice.” (Page 18.)
In that case it appeared that the appraiser nominated by the company insisted upon the appointment of an umpire living at a great distance from the scene of the loss, and refused without excuse to agree to any umpire named by the other appraiser, and it was said that his conduct amounted to a refusal to proceed with the appraisement and the insured was not required to wait longer before bringing his action. The same doctrine is declared in the following cases: Hickerson & Co. v. Insurance Companies, 96 Tenn. 193; Bishop v. A. Ins. Co., 130 N. Y. 488; Chapman v. Rockford Ins. Co. and others, 89 Wis. 572; Uhrig v. Williamsburgh City Fire Ins. Co., 101 N. Y. 362; McCullough v. The Phoenix Ins. Co., 113 Mo. 606; Conn. Fire Ins. Co. v. Cohen, 97 Md. 294; Brock v. Insurance Co., 102 Mich. 583. These are the principal authorities relied upon by the plaintiff in support of the judgment. It will be observed that none of them touches the precise question involved here, since we are not called upon to determine merely whether the conduct of the company or its appraiser in failing to agree upon an umpire rendered it unnecessary that any further steps be taken toward procuring an appraisement. Conceding for the purpose of argument that, since the appraisers had failed to agree, the plaintiff could maintain the action without showing an award, the dffendant contends that the pleadings should have set up the facts which avoided the necessity of an award. The whole claim
The question resolves itself in its final analysis to this: What were the conditions of the policy which the insured was required to perform in order to entitle him to maintain the action? True, the terms of the
The judgment is affirmed.