Insurance Co. of North America v. Folds

Jenkins, P. J. This was a suit on a contract of insurance for the loss by fire of an automobile. The plaintiff, under the terms [722] of the contract, undertook to fix and determine the amount of the loss by an appraisement proceeding provided for by the terms of the policy. The plaintiff having selected an appraiser, and the defendant having selected an appraiser, and these appraisers being unable to agree upon an umpire, the plaintiff procured the appointment'of an umpire by the judge of the superior court of Carroll county, and, after an award had been made, signed by the appraiser selected by the plaintiff and by the umpire, the defendant brought its exceptions to this court upon the ground that the umpire was illegally appointed, in that the loss occurred in the county of DcKalb and that the superior court of Carroll county, where the insured lived and where the policy was issued, was unauthorized to appointed such umpire. Upon the question being certified by this court to the Supreme Court, it was held by the Supreme Court that the appointment of the umpire was illegal and unauthorized, but it was further adjudged by that court that the illegal appointment did not constitute such a judgment as could be reviewed by bill of exceptions. In conformity with this ruling, the writ of error was dismissed by this court; after which a suit specifically based upon the award was brought in Carroll county, setting forth the history of the prior appraisement proceeding, and apparently grounded also upon a liability under the contract itself. The defendant demurred to the allegations setting forth the appraisement proceeding, upon the ground that it had been adjudicated that this proceeding was invalid. The court sustained this demurrer and struck all such allegations, except in so far as they might be relevant to show that the contractual limitation in the insurance contract providing that suit thereon must be brought within twelve months from the date of the loss had not barred the action on the policy, but refused to dismiss the petition and allowed the suit to continue as an action based on the policy, independently of any award, except in so far as the proceeding might have kept the suit from becoming barred. The defendant excepted pendente lite to this judgment refusing to dismiss the petition, and the case proceeded to trial, resulting in a verdict for the plaintiff. The defendant moved for a new trial, and, upon its motion being overruled, brought the case here for review. Judgment reversed. Stephens and Bell, JJ., concur.