Young v. New York Underwriters Insurance

BrogdeN, J. Was there sufficient evidence to be submitted to tbe jury upon tbe issues involving tbe competency and interest of Roberts, tbe appraiser, and Harwood, tbe umpire? Tbe parties entered into a valid and definite written agreement for submission of tbe controversy to appraisers. Tbe appraisers duly took an oath. Himes was selected by tbe plaintiffs and Roberts by tbe defendant. Tbe appraisers so selected chose Harwood as umpire to act only in matters of difference between tbe appraisers. Tbe appraisers and tbe umpire viewed tbe premises and, on 29 July, 1933, they signed and delivered an award in which tbe sound value of tbe property was determined in tbe sum of $9,275, and tbe loss in tbe sum of $5,695.56. Such award so made is presumed to be valid. Hemphill v. Gaither, 180 N. C., 604, 105 S. E., 183. Consequently, such award must stand, unless there is evidence of fraud, mistake, duress, or other impeaching circumstance. Farmer v. Wilson, 202 N. C., 775, 164 S. E., 356. Tbe policy of insurance provided that in tbe event tbe parties could not agree there should be selected “a competent and disinterested appraiser,” and “a competent and disinterested umpire.” Tbe plaintiffs assert that Roberts, tbe appraiser selected by tbe insurance company, was “interested,” and that Harwood, tbe umpire selected by Roberts and Himes, was “interested,” and that Roberts fraudulently procured Harwood, tbe umpire, to sign tbe award. While tbe allegations of attack and assault upon tbe award are broad and sufficient, tbe vital question is: Was there evidence to support such allegations? At tbe outset, tbe evidence discloses that tbe appraisers and tbe umpire were all men of good character and experienced business men. There was no evidence that either Roberts or Harwood bad ever been employed by tbe defendant or bad acted for tbe defendant in any trans *193 action. All three appraisers agreed that the sound value of the property was $9,275. Applying the three-fourths value clause, the loss would, therefore, have been $6,956.25, but Roberts contended that the first floor of the house was of some value, and that the loss should therefore be reduced by the amount of such value. Himes maintained the contrary view. This constituted the only difference between Himes and Roberts and, consequently, under the terms of the contract and agreement, this difference was the sole matter to be determined by Harwood. Nor was it denied that before Roberts had been appointed appraiser that he had been consulted by the plaintiffs to estimate the cost of rebuilding the dwelling, and that he had agreed to replace it for the sum of $5,700. Was Roberts “an interested appraiser?” “An interested appraiser” is one who is partial, unfair, arbitrary and dominated by bias and prejudice for or against the parties or the property in controversy, or both, or has some pecuniary interest in the result or performance of the duties of appraiser. There is no evidence that Roberts had a money stake hidden somewhere in the controversy. So that the sole disqualifying circumstance as to him rests upon the fact that, as Himes put it, Roberts had previously acted as appraiser for both insurance companies and individuals. It would doubtless be considered a novel proposition to assert that because a lawyer of good character and professional skill had, in the course of his practice, represented insurance companies and individuals in settling insurance controversies, he was thereby unfitted, after taking an oath, to act impartially and fairly in an insurance matter with which he had no professional connection. Obviously the same test, in principle, would apply to appraisers. Moreover, the plaintiffs knew beforehand that Roberts had made appraisals for insurance companies and, through counsel, protested by letter of 21 June, 1933. Notwithstanding such protest, however, the plaintiffs executed an agreement with the defendant and consented to the appointment of Roberts by the defendant on 8 July, 1933. Consequently, the Court is of the opinion that there was no evidence that Roberts was “an interested appraiser.” Was Harwood an interested appraiser? Himes, the appraiser for the plaintiffs, took Harwood to the scene of the fire prior to the appointment of appraisers, and upon that visit Harwood, according to the testimony of Himes, declared that the fire had resulted in a total loss. Thereafter, when the question of the selection of an umpire was raised, Himes suggested Harwood. After Harwood was appointed umpire and took an oath to perform his duties fairly and impartially, he agreed with Roberts that the portion of the house remaining after the fire was of some value. Himes testified that he suggested the appointment of Harwood as umpire because “Harwood had been a contractor and he had known him *194 some time; that he had a high regard for his opinion; that he knew his character and reputation; that he was a man of high character. . . . That so far as he and Mr. Roberts went their figures were almost the same, and that when Mr. Harwood took Roberts’ figures away from the conference he was taking figures that Roberts and himself had very closely agreed upon.” Himes also testified that at the final conference Harwood said: “Well, I am just taking Mr. Roberts’ figures, adding for some trim in the two front rooms. ... I am just going to let Mr. Roberts figure that trim, and he took Mr. Roberts’ figures to show the value of the trim,” etc. It is manifest that the alleged interest of Harwood rests upon two items of evidence, to wit: First, the fact that Harwood, before he was qualified as appraiser, had stated to Himes that he considered the loss as total, and that after he was appointed umpire and made further investigation, he had changed his opinion. There is no evidence that any influence whatever had been brought to bear upon Harwood by any person or party. Harwood, testifying as a witness at the trial, said that when Himes first took him out to the building that he had suggested to Himes that the building should be replaced by building on to the remainder of the first floor, and that Himes had represented that “they had a contract with the company whereby they could object to any and all material that remained there in the building.” Thereupon Harwood said he told Himes that, “If you have a contract like that you have a total loss here,” and that Himes had replied, “You stick to me on that.” Second, that Harwood had accepted figures made by Roberts, and had made no figures for himself. There is no evidence that Roberts made any effort, by word or act, to influence the judgment or opinion of Harwood. Nor is there evidence that the figures made by Roberts did not represent an honest difference between his opinion and that of Himes. Viewing the record in the light of the cold neutrality of the printed word, it is' not thought that the mere fact that Harwood changed his opinion, or that he accepted the reasoning and figures of Roberts, is sufficient to constitute any evidence of either fraud or vitiating interest in the performance of his duty. While the jury found that the sound value of the house was $12,000, nevertheless, so far as the appraisers were concerned, there could not have been any difference between them at any time in excess of $1,260.69. Therefore, the Court is of the opinion that there was no evidence to sustain the verdict on the second, fourth, and fifth issues. The plaintiffs rely upon Hill v. Ins. Co., 200 N. C., 502, 157 S. E., 599. In the Hill case, supra, there was no award at all, for the reason that the appraiser, Gladding, signed the paper conditionally and delivered it conditionally, and such condition was never complied with. *195 Moreover, tbe appraiser for tbe defendant bad been “practically in bis employ to make appraisals for four to six a year, . . . tbis unknown to plaintiff.” Manifestly, tbe Hill case, supra, does not control tbe ease at bar. See, also, Geiger v. Caldwell, 184 N. C., 387, 114 S. E., 497; Farmer v. Wilson, 202 N. C., 775, 164 S. E., 356; Yelton v. McKinney, 203 N. C., 785, 167 S. E., 70. Tbe interpretation of tbe record leads tbe Court to tbe conclusion that tbe motion for nonsuit should bave been allowed. Eeversed. ScheNCK, J., took no part in tbe consideration or decision of tbis case.