Slepski v. German Fire Insurance ( 1908 )

Mr. Justice Smith

delivered the opinion of the court.

Appellant contends that the first instruction given by the court at the request of appellees is erroneous, first, in stating as a matter of law that it was the duty of the appraiser selected by appellant to endeavor honestly and fairly to agree with the appraiser selected by appellees in the selection of a competent and disinterested umpire to act in the appraisal of the loss, and it assumes that he was the agent of appellant; second, in that it calls attention exclusively to the duty of the appraiser selected by appellant and instructs as to his duty to act honestly and fairly to the exclusion of the action of the appraiser selected by appellees.

The instruction is as follows:

“First. The 'jury are instructed, as a matter of law, that it was the duty of the appraiser selected by the insurance company to endeavor honestly and fairly to agree with the appraiser selected by the plaintiffs in the selection of a competent and disinterested umpire to act in the appraisal of the loss in this case.

“And if you believe from the evidence in this case that the appraiser selected by the company did not endeavor honestly and fairly to agree with the appraiser selected by the plaintiff in the selection of an umpire and by reason thereof no umpire was selected and no appraisal made of the loss, the fact that no appraisal of the loss was ever made is no defense to this action.”

The additional special plea sets out the provisions of the policy for submitting the adjustment of the amount of the loss to appraisers, and that at the time suit was instituted, no award had been made and no umpire selected.

The replication to the plea averred that without any default of appellees or the appraiser selected by them, the appraiser selected by appellant neglected and refused to act or co-operate with said appraiser selected by appellees in the selection of a competent and disinterested umpire, as provided in said policy of insurance, by reason of which no appraisement was ever made of said loss.

To this replication appellant rejoined that the appraiser selected by it did not neglect and refuse to act or co-operate with the other appraiser in the selection of an umpire and concluded to the country.

The precise issue thus made was as to the action of the appraiser selected by appellant with reference to agreeing upon a competent and disinterested umpire. No issue was taken on the allegation of the replication that the refusal to act was without fault of the appraiser selected by appellees. The instruction properly therefore stated the law on the issue of fact tendered in the pleadings to be passed upon by the jury.

We do not think the instruction assumed as a fact that the appraiser selected by appellant was its agent, or that it was misleading in directing the attention of the jury to the issue made by the pleadings.

We think the evidence warranted the jury in finding that the failure to secure an appraisement was not due to any fault of appellees, but it was due to the fault of the man selected as appraiser by appellant, and that he so conducted himself in the interest of appellant that he might be regarded as the agent of appellant, and appellant was responsible for his conduct. Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9, 20. The court, we think, properly refused to instruct the jury as asked by appellant. There was no evidence before the jury upon which to base the refused instruction.

In our opinion, the evidence in the record clearly supports the verdict and judgment, and the record is free from material error.- The judgment is affirmed. The cost of the additional abstract of record must be taxed against appellant.

'Affirmed.