Siegel v. Insurance Co. of North America

*844 Per Curiam. This is an action upon a policy of fire insurance. At the conclusion of the trial, both parties having moved for a directed verdict, the court discharged the jury and took the case under advise *845 ment, thereafter filing a memorandum opinion and signing an- order for judgment in favor of the plaintiff. The appeal is from the judgment. The plaintiff was the owner of a store in the city of Bismarck, the stock consisting principally of men’s wearing apparel, including shoes. The stock was insured by the defendant company for $2,000 and there was $5,000 of other insurance. On February 22, 1926, a fire occurred which occasioned damage and loss to the plaintiff. On February 26th and 27th, one Gearey, an adjuster for the defendant company, visited the plaintiff’s store for the purpose of adjusting the loss. He inspected the premises and the stock and was supplied with an inventory of which he made use in connection with his attempted adjustment. No adjustment was made. On March 2d the plaintiff demanded an appraisement under the terms of the policy. The company immediately agreed and named an appraiser. An umpire was1 selected and an appraisal agreement executed. On March 12th and 13th the appraisers met at the store of the plaintiff. They immediately' disagreed as to the procedure to be followed in appraising the loss'. ■ As we understand the disagreement, the appraiser selected by the ad-' justment company, which was acting for the defendant, insisted upon! estimating the damage to the visible stock, while the appraiser who had been selected by the plaintiff desired to take the inventory made-some seven weeks before the fire as a basis and to' determine the difference between the value of the stock on hand after the fire and that shown by the inventory. It appeared that immediately after the fire’ the entire stock was in a topsy-turvy condition; that it had been more or less tossed about by the force of the streams of water directed by the firemen; that there was a great deal of damage from the water thus applied; also, that in cleaning up after the fire some of the contents of the store had been hauled out over the protest of the plaintiff’s agent, her husband. Upon the failure of the appraisers to agree upon a method of procedure and "a refusal by the appraiser selected by the adjustment company to submit the matter to the umpire, the appraisers left the store. Thereafter the appraiser selected by the plaintiff and the umpire appraised the loss. The umpire signified his agreement with the method employed by this appraiser and, on the basis of the inventory value, concurred in finding that the loss and damage was $6,795.24. In arriving at this loss and damage it appears that the *846 prior inventory was supplemented by the record of sales and additions or replacements. Proofs of loss were later supplied and the plaintiff immediately proceeded to advertise and conduct a fire sale. There .was considerable correspondence between the adjustment company and the plaintiff or her attorney. This reflects in a general way the inability of the parties to agree upon an adjustment and particularly an appraisal, different views as to the responsibility for the appraisers failing to act in harmony, and the willingness of the adjustment company to name another appraiser, while the insured was insisting that there had already been a binding appraisal. The defendant company at all times was insisting upon its contract rights under the policy. Over the protest of the adjustment company the plaintiff proceeded to sell the remainder of the stock of goods immediately after forwarding proofs of loss to the defendant. On this appeal there are three main contentions: (1) That the appraisement was invalid as not being agreed to by the umpire or by two appraisers; (2) that the sale and disposition of the damaged stock 'before the expiration of thirty days from the filing of the proofs of loss was a violation of the policy conditions preventing recovery; (3) that the plaintiff failed to furnish an inventory as required by the policy. The policy provides that the liability of the company shall in no event exceed what it would cost the insured to repair or replace the property damaged or destroyed with material of like kind and quality, the ascertainment of the loss or damage to be made by the insured and the company or, if they differ, by appraisers; that the loss shall be payable within sixty days after due notice, ascertainment, estimate, and satisfactory proofs of loss have been received by the company, and it- contains this provision: “It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property -lost or damaged with other of like kind and quality within a reasonable itime, on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described.” It further provides for an immediate notice of any loss, for the protection of property from further damage, for the separation of the *847 damaged from the undamaged personal property and putting it in the best possible order, for the making of a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon. It also contains this clause: “The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examinations under oath by any person named by this company, and subscribe the same. ...” The appraisal stipulation is as follows: “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 the 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.” The only evidence of the loss which will support the judgment in this case is that contained in the appraisal and proof of loss, the judgment having been rendered on the theory that the appraisal was binding. If it be assumed that the action of the appraiser selected by the adjustment company in declining to call in the umpire to adjust the differences between him and the other appraiser justified the latter and the umpire in going ahead and completing the appraisal. See Boutross v. Palatine Ins. Co. 100 Kan. 574, 164 Pac. 1069; Caledonia F. Ins. Co. v. Traub, 86 Md. 86, 37 Atl. 785; Powers Dry Goods Co. v. Imperial F. Ins. Co. 48 Minn. 380, 51 N. W. 123; Swearinger v. Pacific F. Ins. Co. 66 Mo. App. 90; Model Dry Goods Co. v. North British & M. Ins. Co. 79 Mo. App. 550; Broadway Ins. Co. v. Doying, 55 N. J. L. 569, 27 Atl. 927. Still, before the defendant can be bound by the appraisement,’ it must appear that the remaining appraiser and the umpire agreed upon every item entering into the award. We find in the award that the sound value of the merchandise before the fire is fixed at $10,192.86. The appraiser and the umpire signed this *848 award, but opposite tbe name of tbe umpire appears tbe following statement: “Signing as to value of stock in present condition. I agree with method of the appraiser R. L. Johnsrud arriving at the loss, assuming that the inventory was $10,192.86, the loss and damage is $6,795.24.” We can only construe this language as meaning that the umpire agrees with the method of the appraiser and that he assumes, without himself determining, that the inventory value was $10,192.86. We cannot construe it as a finding by the umpire that the sound value was in fact $10,192.86. Therefore, the failure of the two to agree upon the sound value vitiates the award. This necessitates a reversal of the judgment for lack of competent proof of loss and damage. In view of the fact that another trial must be had, we deem it proper to consider briefly some of the remaining questions urged 'on the appeal, as they are reasonably certain to arise again. On this record we cannot regard the failure of the first appraisal to be any more attributable to one party than to the other and upon another trial the plaintiff will be required to adduce independent evidence of loss. No appraisal can now be had. Hence, appraisal is no longer involved and the option of the company to take all or any part of the articles at an ascertained or appraised value, or to replace, is not available. These options are clearly intended as means of protecting the insurance company against excessive awards, and, where the award fails through the fault of both parties or without the fault of either and the recovery is limited to the loss which the plaintiff is able to establish by a preponderance of evidence, the defendant loses no valuable right. As to the contention that the right of inspection was lost through the action of the insured in disposing of the property, we think it a sufficient answer to say that the policy does not provide for any specified period during which this right shall exist. It must be assumed, therefore, that a reasonable time was contemplated. We are not prepared to say that the period of more than thirty days which existed in this ease was unreasonable. Judgment reversed and a new trial granted. *849 Nuessle, Oh. J., and Birdzell, Burke, Burr, and Christianson, JJ., concur.