L.D. Jennings Co., Inc. v. North River Ins. Co.

*408 The opinion of the Court was delivered by Mr. Chiee Justice Stabeer. This action was brought to enforce the payment of an award claimed by the L. D. Jennings Company, hereinafter referred to as plaintiff, to have been made in accordance with the terms of a policy issued it by the North River Insurance Company. The complaint alleged that on January 21, 1932, the defendant insured the plaintiff against all . direct loss, not exceeding $2,500.00, through damage by fire to certain household goods and effects named in the policy; that on December 1, 1932, the property was partially destroyed by fire, and thereafter the insured gave due notice to the defendant of its loss, proofs thereof being furnished as required; that the defendant, after investigation, refused to pay the amount claimed, but demanded an appraisal as provided by the policy, to which the plaintiff agreed; that the parties then entered into a written agreement appointing appraisers “for the purpose of ascertaining and fixing the sound value of the said property and the amount of said loss and damage”; that each party named one appraiser, and these two selected an umpire, whose duty it was “to act with them in matters of difference only”; that the appraisers were unable to agree as to the amount of the loss, and the award was finally made by the appraiser appointed by the plaintiff and the umpire, who fixed the value of the property at the time of the fire at $5,189.05, and the damage at $3,418.95, which the insurance company refused to pay. The defendant, answering, admitted the issuance of the policy, that the property was partially damaged by fire, and that an agreement for submission and award was entered into upon the demand of the insurer; but alleged that the award as made was invalid and should be set aside as of no effect for the reasons, in substance, that the appraiser named by the insured accepted as true and correct the figures submitted by the plaintiff of the costs of the property insured, its value at the time of the fire, and the damage done; that he refused to make any inquiry as to these *409 matters, and made no effort to verify the correctness of the figures furnished the assured; that he refused to cooperate with the appraiser named by the defendant, in an effort to arrive at a decision pertaining to such matters, so that the two appraisers might then submit their differences to the umpire for settlement by him in accordance with the terms of the appraisal agreement, but on the contrary, the appraiser appointed by the insured called in the umpire and these two acting together fixed the award, all without any investigation on the part of the umpire whatever. The plaintiff demurred to the answer on the ground that it did not state facts sufficient to constitute a defense, stating with particularity wherein it failed to do so. Judge Stoll, who heard the matter, sustained the demurrer; but on appeal to this Court the judgment was reversed as to the defense above set out. See L. D. Jennings Co., Inc., et al. v. North River Insurance Co., 171 S. C., 548, 172 S. E., 700. The case thereafter came on for trial before Judge Oxner and a jury, and resulted in a verdict for the plaintiff. At the close of all the testimony, counsel for defendant asked the Court to instruct the jury that the award was not binding on the defendant and should be disregarded by them. This request was refused, the Court holding that the validity of the award, under the evidence, was a question for the jury. The defendant excepts and brings error. The appellant states and argues two questions: (1) Was the appraiser named by the respondent such a competent and disinterested person as to have warranted his nomination by the assured? (2) Was the trial Judge in error in refusing to hold that the award was invalid on the ground that the umpire had not performed the duties required of him by the agreement of the parties? As to the first question, the contention is that Hurst, the appraiser named by the insured, helped to prepare the proofs of loss and thereby committed himself along every line of controversy that might arise as to sound value, loss, and damage. The trial Judge, when *410 asked that the award be taken from the jury on this ground, stated: “I don’t think that would disqualify him as a matter of law. I think that would be evidence to be considered by the jury on the question as to whether or not he acted impartially.” Hurst testified that shortly after the fire, but before he was nominated an appraiser, he was requested by Jennings, the president of the plaintiff company, to estimate the damage done to the property, as he had to know for the purpose of filing proofs of loss with the company; that the witness had been in the furniture business for forty-seven years and knew something about values, etc., of such goods; and that, in compliance with the request, he looked the furniture over and estimated the damage to the different articles. He further stated that the list which was before him as an appraiser was not made up until after he was appointed to that office; that in making up the figures and determining the damage done, he was governed by his own judgment where the property could be seen, but where it could not be seen, that is, if an article had been totally destroyed, he had to get the needed information from Jennings himself; that when Dickerson, the appraiser named by the insurance company, came over from Columbia for the purpose of the appraisal, they, he and Dickerson, named an umpirt, the man suggested by Dickerson being acceptable to the witness; that Jennings took the appraisers around and showed them the damaged furniture and where it was stored; and that, after inspecting it, Dickerson figured for himself, but that they could not agree on anything but disagreed as to everything, that is, as to the entire amount; that the witness was satisfied, from his inspection of the furniture and his knowledge of the values of such property, that the amount of the award correctly expressed the true loss of the insured; and that he tried to do, as an appraiser, what was right about the matter, without bias or prejudice. The purpose of an appraisal is to obtain, if possible, a fair and satisfactory adjustment of the claim of the insured. *411 It is clear, therefore, if this is to be accomplished, that each of the disagreeing parties should name an appraiser concerning whom there is no ground of suspicion of partiality. We may here say that the Court does not look with approval upon the selection of any one for such task who may have theretofore expressed, in an active capacity, his judgment or opinion as to the amount of damage done; for, certainly, it might be argued with some show of logic that the mind of such person is already made up as to the essential matters which he will be called upon to decide as an appraiser, and for that reason may not be regarded as impartial. However, in the case at bar, there was no evidence tending to show that Hurst had any interest in the property, that he acted unfairly or impartially in the matter, or that he was influenced by any improper motive or consideration in the performance of his duty as an appraiser. We think, therefore, that the Court correctly refused, on the ground made, to declare the award invalid, as a matter of law, but properly submitted to the jury the question whether Hurst was, in the circumstances recounted, an impartial and disinterested appraiser. It is clear that the trial Judge, in doing so, gave to defendant all that it was entitled to. This assignment of error is without merit. As to the second question, the appellant contends that the differences between the two appraisers were not submitted to the umpire, as required by the terms of the appraisal agreement, and that the umpire made no investigation on his part whatsoever, and for these reasons the award should have been declared invalid by the Court. As we have already stated, the testimony is that Major Shelly, a man who had been engaged in the furniture business in the City of Sumter for fourteen years, was suggested as umpire by Dickerson, the appraiser named by the insurer, and his selection was agreed to by Hurst. Shelly testified, among other things, that on the afternoon that the award was made, in response to a message received by him, he went to Hurst’s store and found there Jennings, Hurst, *412 and a stranger named Dickerson; that Dickerson and Hurst did most of the talking, and submitted to him a list of “differences of figures” which they had; that the witness stayed at the store several hours, and during that time Hurst and Dickerson went into the back yard, and later called the witness out there and told him that they were unable to agree on the loss; that neither of them mentioned any special item, but that they were unable to agree on the whole loss; that “we all figured on it for four or five hours, I saw so many figures I became kind of staggered * * * I went over the list with the gentlemen. Each article, and I kind of arrived at the figures, remembering what I had seen in the house,” and that the witness recognized the list before him as a copy of the list Hurst and Dickerson had at the time they tried to get together. We regard to his inspection of the furniture; Shelly stated that Hurst said that he had already examined it, and that if the witness wanted to see it to go across the street and look at it; that the witness found it unnecessary to do this, for the reason he had gone to the house on the day of the fire, about thirty-five minutes after the burning occurred, and that, although he went there from curiousity, he saw and observed all of the furniture which was not totally destroyed; that in making the award he acted upon what he knew of the damage to the property; that he knew the class of furniture that was damaged, and knew about what its cash value was; that at the time of the fire he was in the house for about ten minutes looking at the damaged property; that the house was in a deplorable condition from the fire and water; that the witness approved the figures on the list which he examined as correctly representing the right figure between the sound value and the damage, and that he based his conclusion, as he stated, upon the knowledge gained from his observation of the damaged furniture after the fire, from his knowledge of the quality and kind of furniture it was, its cash value, etc. *413 A further review of the testimony is unnecessary. From what has been pointed out, it is clear that the umpire substantially performed the duties required of him by the agreement of the parties. While it is true there were some irregularities, it is not made to appear that they substantially affected the result of the proceedings, and that the award, as a matter of law, was thereby invalidated. The trial Judge properly submitted all issues to the jury, under a full and correct charge of the law applicable thereto. The verdict has support in the evidence, and we think it should be allowed to stand. All exceptions are overruled, and the judgment of the Circuit Court is affirmed. Mr. Justices Carter and Bonham, concur. Mr. Acting Associate Justice M. M. Mann, dissents.