Sauthof v. American Central Insurance

Vincent, J. This is an action brought under a policy of insurance issued by the defendant company to the plaintiff, whereby the defendant contracted to insure the plaintiff against all direct loss or damage by fire, upon certain personal property in said policy mentioned. The property enumerated in said policy having been damaged by fire, the plaintiff, within sixty days thereafter delivered to the defendant company his duly authenticated proof of claim, embodying an itemized list of the damaged articles to each of which several items were appended certain figures indicating both the sound value and the loss or damage. This estimate of the plaintiff not proving satisfactory to the defendant company, the latter claimed an appraisal in accordance with its rights under the policy. Each of the *326 parties having appointed an appraiser and the two so chosen having selected an umpire, they proceeded to discharge their duties and later made a report of their doings to the plaintiff and to the defendant company. This report fixed the sound value of the damaged property at $1,000, and the loss thereon at $756.29. This report, made by the appraisers, as. aforesaid, gave the sound value and the loss in the aggregate and did not show the sound value of and loss upon each particular article. At the trial of the case the plaintiff offered in evidence the-report of the appraisers, above mentioned. The defendant objected to its admission on the ground that the award of appraisers, appointed in accordance with the provisions of the policy, should contain an itemized list of the property ■ and that the appraisers should state separately the sound value of and the loss upon each item. The objection of the defendant was sustained by the trial court and the plaintiff excepted. At the close of the plaintiff’s testimony, no award having, been introduced in evidence, a motion to non-suit the plaintiff was granted and to the granting of this motion the plaintiff also excepted. Other exceptions taken by the plaintiff during the course of the trial are not considered by the plaintiff in his brief and must be considered as waived. Upon the two exceptions above mentioned the case is now before this court. (1) Theprovisions of the policy necessary to the consideration of the question presented are as follows: “1. The company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs and the loss or damage shall be ascertained or estimated according to such actual cash value,” . . . “said ascertainment or estimate shall be made by the insured and this company, or if they differ, then by appraisers as hereinafter provided; and the amount of loss or' damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable after due notice, ascertainment, estimate and satisfactory proof of the loss have been received *327 by this company in accordance with the terms of this policy. 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.” . . . “2. If fire occur the insured shall give immediate notice of any loss thereby in writing to this company,” . . . "separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and within sixty days after the fire” . . . "shall render a statement to this company signed and sworn to by the insured, stating . . . the cash value of each item thereof and the amount of loss thereon.” The plaintiff contends that it is not necessary that the report of the appraisers should contain an itemized list of the several articles damaged, together with the sound value of and the loss upon each article, but that the aggregate loss as given by the appraisers, in the present case, is a sufficient compliance with the terms of the contract. The plaintiff in support of his position cites the case of the Continental Ins. Co. v. Garrett, 60 C. C. A. 395, but we do not think that this case deals with the particular question raised in the case at bar. In that suit the subj ect of insurance was a dwelling house and constituted but a single item upon which it was competent for the appraisers to fix the sound value and the amount of the loss. The appraisers, however, omitted to ascertain the sound value and only found the amount of the loss. Upon that point the court said: "The submission required the appraisers to determine two things, and two things only, for the submission was only for the purpose of determining the amount of loss, and no other defence open to the insurer was submitted. The policy itself required that the appraisers should state separately sound value and damage.” . . . "Sound value is the cash value, making an allowance for • depreciation due to use, etc., at and immediately preceding the time of the fire. *328 This definition is plainly implied by the paragraph from the submission set out above. The award is therefore not in accordance with the submission, because the sound value has not been estimated or appraised.” This, however, being a suit in equity, the court having obtained jurisdiction for the purpose of setting aside the award, which had been pleaded in bar to the pending suit at law upon the policy, retained the case and determined the loss and damage. The plaintiff has also cited authority to the effect that courts approach the interpretation uf a statute with the presumption that words and phrases therein are used in their familiar and usual sense, without any forced, subtle, or technical consideration to limit or extend their meaning (26 A. & E. Enc. of Law, p. 605, § 5); that all legislation interfering with the right of the individual, whether he be a natural person or a corporation, to enter into contracts or to exercise his preferences as to the person with whom he shall do business, should receive strict construction; that it is a well established rule of construction that statutes in derogation of the common law are to be strictly construed and hence while a statute which is plainly inconsistent with the common law will prevail, yet statutes are not presumed to make any alteration in the common law, further or otherwise than the clear import of the statutory language necessarily required (26 A. & E. Enc. of Law, p. 662); that strict construction as applied to statutes means that they are not to be so extended by implication beyond the legitimate import of the words used in them as to embrace cases or acts not clearly described by such words and to bring them within the prohibition or penalty of such statutes, that it does not mean that words shall be so restricted as not to have their full meaning, but that everything shall be excluded from the operation of statutes so constructed which does not clearly come within the meaning of the language used (26 A. & E. Enc. of Law, § 7, p. 657). *329 (2) Whilewe do not disapprove of or question these propositions of law we do think that they are not applicable to the particular matter under consideration. The general rule of law is that the cardinal purpose or intent of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious. They are to be brought into harmony, if possible, and so considered that no clause, sentence or word shall be void, superfluous or insignificant. Words and clauses in different parts of a statute must be read in a sense which harmonizes with the subject matter and general purpose of the statute. If, upon examination, the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to that purpose. Sutherland on Statutory Construction, §§ 240, 241. We cannot agree with the contention of the plaintiff regarding the construction of the statute in question. It is expressly provided in the policy that the company shall, at its own option, have the right to take all or any part of the articles damaged at the appraised value. If this court should hold that the report of the appraisers was a substantial compliance with the terms of the contract, the effect would be to completely abrogate that other provision of the contract which gives to the defendant the right to take all or any part of the articles at the appraised value. An itemized .appraisal is therefore absolutely necessary to the exercise of certain rights and privileges which are expressly given to the defendant under the contract. For these reasons we think that the statute in question must be construed, if possible, so as to give effect to all parts thereof and that any other construction would be unwarrantable. We are, therefore, of the opinion that the report of the appraisers giving the sound value of and the loss upon the property in the aggregate was not a sufficient compliance with the statute and therefore void, and that the nonsuit was properly granted by the Superior Court. *330 The plaintiff’s exceptions are overruled, and the case is remitted to the Superior Court, with direction to enter judgment on the nonsuit.