86 Kan. 145 | Kan. | 1911
Lead Opinion
The opinion of the court was delivered by
This action was for the recovery of a loss upon h fire insurance policy issued upon a stock of millinery. The policy contained an arbitration clause. A fire occurred, causing damage to the goods insured, and appraisers were chosen, one being named by each party, who selected an umpire. An award was made, signed
Questions arising in the district court upon the sufficiency of the plaintiff’s pleadings are determined adversely to appellant’s' contention in Ross v. Insurance Co., 84 Kan. 572, 114 Pac. 1054. The question to be determined here is whether there was competent evidence to sustain the finding. The policy contained a stipulation that:
“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 evidence of what occurred at the arbitration is conflicting. There was evidence tending to prove the following facts: After the two appraisers had proceeded for about two days in examining the remaining stock and remnants, and in endeavoring to determine what had been destroyed, they disagreed upon the number of hats that had been burned up, and later they disagreed upon the damage to a bunch of ribbons. Thereupon Mr. Potts, the appraiser named by the company, brought in the umpire. Mr. Potts and the umpire then-proceeded with the examination and appraisal. Mr. Anderson, the other appraiser, remained in the store
The arbitration agreement contained the following:
“John Anderson . . . and H. A. Potts shall appraise and ascertain the sound value of and the loss upon the property damaged and destroyed by the fire of July 8th, 1909, as specified below. Provided, That the said appraisers shall first select a competent and ■disinterested umpire who shall act with them in matters of difference only. The award of any two of them, made in writing, in accordance with this agreement, shall be binding upon both parties to this agreement as to the amount of such loss.”
The award made by Mr. Potts and the umpire fixed the sound value of the goods at $4000, and the loss at $838.02, and the appellant’s portion of the loss so found (other insurance having been taken) was $98.60. With reference to the estimate of sound value the umpire testified:
“We didn’t invoice the stock and measure every piece and count every dozen buttons, or every bolt of ribbon, but after sizing the things up we came to that conclusion. It was the value as near as we could come to it without taking accurate invoice of the entire stock. I was n’t called in to take an invoice. We partly examined the contents of the boxes, not all.”
Mrs. Ross testified that “they (Anderson and Potts) never at any time examined the contents on the south side. I spoke to Potts about it and he told me to attend to my own .business, he said he would n’t consider it.” Mr. Anderson testified that no examination was made of goods on the south side of the room. Mr. Potts testified that they made no report of the goods on the south side of the room, and didn’t count any of the merchandise on that side at all; that he did n’t remember to have examined any of these boxes with Mr. Seymour (the umpire). As there was other insurance to the amount of $4000 upon the stock and the district court gave judgment for $500, the full amount of the policy
Little need be said concerning the competency of Mr. Potts. It is true he was not an expert in the values of millinery, but exact personal knowledge was not required. It was only necessary that he should have such general knowledge and understanding as. would enable him upon reasonable investigation, inquiry and examination to form a candid judgment and make a fair ap-. praisal. (Bangor Savings Bank v. Insurance Co., 85 Maine, 68, 26 Atl. 991.) The mere fact that the award was greatly less than the court found to be the actual loss is not deemed sufficient proof of bias or prejudice on the part of an arbitrator, but is a circumstance proper to be considered in connection with the conduct of-the appraisers and other attendant circumstances in determining whether an award was fairly made. (Strome v. London Assurance Corp., 20 N. Y. Supr. Ct., App. Div., 571, affirmed in 162 N. Y. 627, 57 N. E. 1125; Perry v. Insurance Co., 137 N. C. 402, 49 S. E. 889; Royal Ins. Co. v. Parlin & Orendorff Co., 12 Tex. Civ. App. 572, 34 S. W. 401; Davis v. Guardian Assurance Co., 94 N. Y. Supr. Ct. 414; Stemmer v. Insurance Company, 33 Ore. 65, 49 Pac. 588, 53 Pac. 498; Morse, Arbitration and Award, p. 539; 3 Cyc. 749.)
In the Perry case the jury assessed the damages to the property at $750 while the award was for only $73.50. In Bradshaw et al. v. A. Ins. Co., 137 N. Y. 137, 32 N. E. 1055, the verdict was for $2750 and the award was for $1760.31, and the court considered this a very large difference in such a total, and a circumstance to be considered in finding whether an appraiser named by the insurance company was disin
Another circumstance should be noticed. The appraiser, when one of the owners spoke to him about the goods on the south side, not only refused to consider the matter, but told her “to mind her own business.” It was entirely proper for her to call attention to these goods, and the sharp rebuke was not indicative of a dispassionate mind seeking, all proper sources of information. (3 Cyc. 748.) In Kaiser v. Hamburg-Bremen Fire Ins. Co., 59 N. Y. Supr. Ct., App. Div., 525, affirmed in 172 N. Y. 663, 65 N. E. 1118, a somewhat similar case, it was said:
“We think it is a fact that may be taken judicial notice of that it is usual and customary for the owner or his representative to make statements to the appraisers, and their failure in this instance to listen to such statements is some evidence in support of the contention that Vanderwerf was not an unprejudiced, unbiased and disinterested appraiser.” (p. 530.)
It should also be noted that the arbitration ’ agreement provided that the umpire should act with the appraisers “in matters of difference only.” While the appraiser appointed by the appellant testified that there Was a disagreement on practically everything, the other appraiser testified, as we have seen, to the contrary, and his testimony, in view of the general finding, must be taken as true. When the umpire came in, he with Mr. Potts, proceeded to make the appraisment of the whole stock, ignoring Mr. Anderson, as he testified, although afterwards requesting him to return and act with them. It appears that no effort was made to find the sound value before the umpire was called in.
Upon a careful examination of the abstracts it can not be held that the finding of the district court against the sufficiency of the award is not sustained by competent evidence, and although there was evidence to the contrary, that finding must prevail. The weight of the evidence was for that court to determine.
“Whether, in any given case, there has been such misconduct as to require the award to be set aside, will generally be a mixed question of law and fact — mostly fact . . . —in regard to which the finding of the trial court will, of course, be final.” (Farrell v. German American Ins. Co., 175 Mass. 340, 347, 56 N. E. 572.)
With the award set aside, as it was by the general finding and judgment, there was sufficient evidence to sustain the further finding of the amount of the loss, and the judgment rendered thereon is therefore affirmed.
Dissenting Opinion
(dissenting) : The parties agreed to an appraisement. Each selected an appraiser, and the two appraisers, as provided by the terms of the policy, selected an umpire who was to act in case of disagreement. There was a disagreement as to the amount of the loss and the umpire was called in. Afterward the
There is not much left in this case to decide, except whether the appraiser appointed by one of the parties can break up the appraisement by arbitrarily withdrawing. If he can, then either appraiser may act so long as he considers that the party appointing him is getting an advantageous award; and the moment he is dissatisfied with any decision made by the other two upon a disputed matter he may end the arbitration by simply withdrawing and refusing further to act. This can hardly be the law, for reasons too obvious to require discussion. The insured was present while • the other appraisers were proceeding with the appraisement and knew that Anderson, the one appointed by her, had refused to act with them. She made no objection to their continuing with the appraisement, and appeared before the umpire and the other appraiser and endeavored to get them to allow damages for certain goods which she claimed had been destroyed, and to increase the amount of the award. A party cannot be permitted to speculate upon the result of such an appraisement and to stand by it provided it is favorable to him and refuse to be bound by it if it prove to be unfavorable.
“Where a party to an arbitration learns facts which make an arbitrator incompetent, but thereafter proceeds with the hearing without objection to his incompetency, and takes the chances of a favorable decision, he will be deemed to have waived his objection, and will not be permitted to raise the same after an award has*153 been made.” (Anderson v. Burchett, 48 Kan. 153, syl. ¶ 3, 29 Pac. 315.)
The opinion proceeds upon the theory that if the appraiser appointed by the insurance company is shown to have served in that capacity for the company on previous occasions, or for other insurance companies, that fact and the further fact that the court upon the evidence submitted on the trial finds the loss to be greater than the amount of the award, will justify the court in holding the award invalid. The opinion concedes that neither of these facts is of itself sufficient to warrant the court in setting aside the award. In my opinion both taken together are not sufficient. The courts encourage the settlement of controversies involving the value of property by arbitration. The rules upon which an award will be set aside are well established. The fact that one of the parties may be able to satisfy a court or jury that he should have been' allowed more or that the other should have been allowed less is no ground for holding the- award void, in the absence of fraud or misconduct on the part of the appraisers. Nor does an honest error of the arbitrators in applying the rules of evidence render the award invalid. (Stemmer v. Insurance Company, 33 Ore. 65, 49 Pac. 588, 53 Pac. 498.)
As said in 3 Cyc. 673:
“Courts do not travel out of their way for the purpose of overturning awards; but. on the other hand, they will refrain from exact and technical interpretation, and will indulge every reasonable presumption, whenever there is any room for such indulgence, in favor of the finality and validity of an award.”'
If sufficient grounds existed for setting aside the award I agree that the finding of facts by the trial court would be conclusive; but the facts relied upon to avoid the award are not, in my opinion, sufficient. Unless fraud or misconduct on the part of the appraisers. was clearly established, the court could not inquire into the actual loss, and set the award aside because in the