Springfield Fire & Marine Insurance v. Payne, 57 Kan. 291

Springfield Fire & Marine Insurance v. Payne

57 Kan. 291 | Kan. | 1896

Martin, C. J.

1. Agreement to appraise best evidence. I. The question of a difference between the assured and the insurers as to the amount of the loss was scarcely an open one after the execution of the written agreement of June 17, 1891. That the loss was legitimate does not seem to have been disputed at any time, and the only function that appraisers or arbitrators could perform was to ascertain and fix its amount. Payne did not testify that the agents and adjusters ever agreed to pay him the full amount of of the policies, to wit, $19,000, although he says they did not question the amount of the loss. He admits that the subject of the appointment of appraisers was discussed at the Coates House, and this was more than a month before the agreement was signed. According to the findings of the jury, Payne executed the paper advisedly. Upon his own testimony we are unable to discover any fraud practiced upon him by the Insurance Companies in order to obtain his signature. It was plainly stated in the writing that the appraisement was ‘ ‘ for the purpose of ascertaining and fixing the amount of said loss and damage,” and that “the award of said appraisers, or any two of them, made in writing,” should be binding upon both parties to the agreement. The writing is the *298best evidence of the intent of the parties in appointing appraisers, and, there being no evidence of fraud or mistake, Payne should not be heard to contradict what is therein so clearly expressed. Hopkins v. St. L. & S. F. Rly. Co., 29 Kan. 544, 550; Smith v. Deere, 48 id. 416; Getto v. Binkert, 55 id. 617, 620, and cases cited.

2. Award of appraisers not binding information given as to value. II. The agreement of June 17, 1891, designated P. B. Messenger and S. G. Gribi as appraisers. Messenger had been named by Payne, and Gribi by the Insurance Companies. Messenger was a carpenter and builder who had worked on Payne’s house, part of the time as foreman, and bn was entirely familiar with the materials and workmanship entering into its , . construction. Gribi was a contractor and builder residing at Wichita, and had on several previous occasions acted as -an appraiser of fire losses by the appointment of insurance companies. The evidence tends to show that Gribi was in Kansas City on business before the agreement was signed, and that he consented to serve as an appraiser. Gribi and Messenger went to Argentine on the day of their appointment and measured the foundation walls; the superstructure of wood having burned leaving little else to indicate the size and character of the building. A rain coming up, they went to the place where Payne was residing, and he gave them a photograph of the house. From the measurements and the photograph Messenger and Gribi drew a rough plan or diagram of the house. Gribi testified that Payne then and there gave a very full description of the house with all its materials and workmanship, but this was fully denied by Payne. .It is not claimed that Payne had any hearing after *299that day or any notice that evidence would be heard as to the character or the value of the building. The appraisers obtained the bill of the Hopkins Planing Mill Company, which included the greater part of the mahogany, cherry, bird’s-eye maple and butternut finishing lumber, together with doors of like character, and this bill with the measurements, the phograph and the plan made therefrom appear to have been the sources of information upon which Gribi .acted with the knowledge, if any, derived from Payne, for he did not testify that he obtained any data from Messenger. The latter had the same sources of information, and also the previous knowledge of the house derived from his personal familiarity with it. Meyer, although appointed by the other appraisers because of their difference as to the gas machine, seems to have gone all over the calculations and estimates, but it does not appear that he obtained any facts from Payne or from any other source familiar with the building. Messenger died before the trial. His deposition was taken, but neither party offered it in evidence.

An appraisement of existing property is usually made upon actual view, and without the aid of other evidence; and, in the case of appraisers entirely familiar with property afterward destroyed, they might make an intelligent estimate upon their former knowledge ; but this is not so as to appraisers who have never seen the property. In such case the estimate must be as to property which was, but is not, and all knowledge of it must be derived from evidence of some sort not necessarily under oath. The measurements, the photograph and the plat made therefrom, together with the planing-mill bill, would no doubt greatly aid Gribi in making an estimate ; but if he ob*300tained. no information from Payne, or any other person, it could hardly be claimed that his estimate would be an intelligent one. Messenger was well informed respecting the building, and was, perhaps, competent to make an estimate with the aids before indicated; but he did not sign the award. If he agreed to the amount thereof, however, then it may fairly be considered his by reason of the signature of the third appraiser in the selection of whom he joined, for, by the terms of the agreement, the award was sufficient if signed by any two of the appraisers.

The rule laid down by the Court was too strict in allowing the jury to pass upon the question whether or not the appraisers were in possession of the facts necessary for them to arrive at an intelligent conclusion, and in declaring that, if the appraisers did not take into consideration all the items of the loss covered by the policy, then the award was not binding upon Payne. Very few awards could stand the test of so strict a rule. An award is prima facie conclusive between the parties as to all matters submitted to the arbitrators; Miller v. Brumbaugh, 7 Kan. 343, 352; Groat v. Pracht, 31 id. 656; and it will not be set aside for mere irregularities not affecting substantial rights. Anderson v. Burchett, 48 Kan. 153. In Underhill v. Van Cortlandt, 2 Johns. Ch. 339, 361, Chancellor Kent said:

“Admitting that there was no corruption or partiality in the arbitrators, (and none is pretended,) and admitting that there was no misconduct in them during the course of the hearing, nor of fraud in the opposite party, (and none is established by proof,) then, I say, the Court cannot inquire into the charge of an over or under valuation, or of the reasonableness or unreasonableness of the award, but it is binding and conclusive. If every award must be made conforma*301ble to.what would have been the judgment of this Court in the case, it would render arbitrations useless and vexatious, and a source of great litigation ; for it very rarely happens that both parties are satisfied. The decision by arbitration is the decision of a tribunal of the parties’ own choice and election. It is a popular, cheap, convenient, and domestic mode of trial, which the courts have always regarded with liberal indulgence; they have never exacted from these unlettered tribunals, this rusticum forum, the observance of technical rule and formality. They have only looked to see if the proceedings were honestly and fairly conducted, and if that appeared to be the case, they have uniformly and universally refused to interfere with the judgment of the arbitrators.”

See also Boston Water Power Co. v. Gray, 6 Metc. 131, 165, and Hall v. Insurance Co., 57 Conn. 105, 117, and authorities cited.

3. Non expert opinion as to value competent. III. The policy required the Insurance Company to make good unto the assured the amount of loss or damage, to be estimated according to the cash value of the property at the time of the loss, not exceeding $4,000. One method of arriving at such loss is by estimating the cost of replacing the building less any depreciation from úse, age, or otherwise ; and the other is by evidence of the value of the building, at the time of its destruction, less the value, if any, of the ruins. If witnesses as to the worth of the building are shown by cross-examination to have little knowledge upon the subject, this would be proper matter of argument to the jury as affecting the weight of their testimony, but it should not be excluded on that account. Evidence of the cost of a building, however, can hardly be said to be evidence of its value at a particular time. Sometimes, from the necessities of the case, it may be proper to inquire as to the cost of an article as tend*302ing to establish its value ; but there is no such necessity here, and Pajme ought not to have been permitted to testify that the house cost about $25,000.

4. Burden on challenging party to show award invalid. IV. It does not appear that either party made a-written request for submission to appraisers, and, therefore, an appraisement was not a condition precedent to the commencement of an action. Insurance Co. v. Wilson, 45 Kan. 250; Insurance Co. v. Wallace, 48 id. 400. Yet an appraisement having been agreed upon, Payne is bound by the award unless it is invalid under the principles above stated, and the burden of proof is upon him to show its invalidity. If, however, the award be not sustained, then Payne will be entitled to recover from the Insurance Company the sum of $4,000 and interest thereon at six per cent, pel annum from a time 60 days after the proofs of loss were received at Chicago ; or so much thereof as shall not exceed four-nineteenths of the total loss, with interest thereon as aforesaid.

The Court did not err in refusing to submit to the jury the particular questions of fact referred to in the brief of plaintiff in error, nor in holding that further-proof of loss was waived, nor in any other respect material to the case except as hereinbefore indicated; but, for these errors, the judgment must be reversed and the cause remanded for a new trial.

All the Justices concurring.