Kent & Purdy Paint Co. v. Aetna Insurance , 165 Mo. App. 30 ( 1912 )

CAULFIELD, J.

(after stating the facts). — I. The defendant contends that the petition does not state a cause of action, in that it “counts on the ‘award in writing’ and yet states no facts or terms of the policy which give effect to the award. ’ ’ Whatever the petition lacked in this respect was fully supplied hy allegations of the answer. This rendered it unquestionably sufficient after verdict. [Krum v. Jones, 25 Mo. App. 71.] Defendant appears to realize this, but cites cases to the effect that a plaintiff is not allowed to build up and make out his cause of action upon allegations found in the answer, where he has put them in issue by denials contained in his reply. These cases have no bearing here for the plaintiff has not put itself in that position. Its reply denies only the allegations of “new matter” and new matter includes only facts which avoid the action and which plaintiff is not bound to prove in the first instance in support of it. [State v. Rau, 93 Mo. 126, 5 S. W. 697; Cordner v. Roberts, 58 Mo. App. 440.] As the allegations of the answer which plaintiff would rely upon did not avoid the action but were bound to be proven in the first instance in support of it, they were not such allegations of “new matter” as were denied or put in issue by the reply.

II. There is no just ground for defendant’s criticism of the trial court’s action in sustaining the demurrer to defendant’s cross-bill. It has been held that in an action at law on an award made under a common-law submission to arbitration, the misconduct or mistake of the arbitrators could not be pleaded as a defense. The award could only be set aside in equity. [See Finley v. Finley, 11 Mo. 624.] We need not decide whether that would be the ruling under our code. This is not an action upon an “award” made under a “submission to arbitration” in the- accepted legal sense of those terms. It is not an action upon an award at all. It is an action upon a contract in which an appraisal — something less than an award— has been used as conclusive evidence of the amount of damage, but not as the ground of action. [Zallee v. Laclede Mutual Fire & Marine Ins. Co.,, 44 Mo. 530.] The agreement for an appraisal formed a part of the contract sued upon. It included, by clear and necessary implication, , a requirement that the appraisers and umpire should fairly and lawfully conduct themselves in the discharge of their duties and make the appraisal in accordance with the provision and agreement therefor. That requirement was as much a part of the contract sued upon as if it had been written in the body of the instrument. A showing that it had not' been complied with was a showing that the contract sued upon had not been fulfilled, and was a matter of defense at law. [Leitch v. Miller, 40 Mo. App. 180.] The trial court adopted that theory in sustaining the demurrer to the cross-bill and in permitting the defendant to set up the same matters by way of defense, and we are of the opinion that its action was correct.

III. The trial court committed no error in excluding testimony to the effect that the plaintiff sold and disposed of the insured property after the appraisal had been completed and signed. By this testimony the defendant would have shown that it was given no opportunity to take the property at’ its appraised value, as contemplated by the policy. But the defendant repudiated the appraisal and elected not to be bound by it, and by so doing it necessarily waived and lost its option to take the goods at the appraised value. It could not repudiate the appraisal and still assert and claim rights growing out of and depending upon it. [Model Dry Goods Co. v. Insurance Co., 79 Mo. App. 550.] The excluded evidence was not material to any issue involved in this case.

IV. Defendant further contends that the appraisal was not made in accordance with law and the contract. The presumption is that it was, that the appraisers and umpire proceeded properly, did everything rightly, and only appraised the proper loss; and the burden of proving the contrary was on the defendant. [Kerr on Insurance, p. 639; Niagara Fire Ins. Co. v. Boon, 76 Ark 153, 156, 88 S. W. 915.] And the judgment being for the plaintiff, we must assume that the trier of the facts found against defendant’s version, of the facts and in favor of plaintiff’s version, and must accept that finding as conclusive. This disposes of the assertion that the umpire expressly refused to permit either appraiser to accompany him in making his examination and refused to look at or consider the appraisement of either. The fact that such refusals occurred had no support except in Albrecht’s testimony for defendant, and the trier of the facts evidently disbelieved it, for in the face of a declaration of law embodying defendant’s theory that such refusals would vitiate the appraisal the finding upholds the appraisal. Nor is there any substance to defendant’s assertion that the appraisal is void because “the appraisers did not together go over the goods, with a view to ascertain their value.” Defend-, ant cannot mean by this that they did not go together at all to view the damaged property because it is conceded that they did go together once; but it does apparently contend that the appraisers should have stayed together with the goods long enough for each to finally decide upon the value to be placed upon each article and the amount of the damage thereto and that it was not sufficient or proper for them after-wards, to go separately to complete the examination more in detail. The contract does not so provide. It provides that “the appraisers together shall then (after choosing an umpire) estimate and appraise the loss.” This did not require them at all hazards to view the damaged property together nor forbid them viewing it separately, nor were they so required or forbidden by law. Appraisers such as these, chosen under the circumstances they were chosen, were not to be governed in their proceedings by the same rules applicable to technical arbitrators and court proceedings, but were to proceed according to the dictates of business sense, prudence and judgment. [Kerr on Insurance, p. 639.] And we are satisfied, as the trier of the facts very evidently w&s, that they so acted, in first going together to look at each damaged article generally and then going separately to examine them more carefully and in detail. Defendant could not possibly have been injured by such a proceeding.

Defendant also asserts that there was no valuation by both appraisers of the goods as to each article or item. We are of the opinion that the evidence justifies the inference that there was such a valuation. But that question of fact is not left for us to decide. The finding of the trier of facts concludes us in that respect also. And so it is with defendant’s complaint that the two appraisers did not get together and make an honest effort to agree as to what the loss and sound value was. The trial court has found against the defendant in this respect and we are bound by such finding. But we would not be inclined to disturb the trial court’s finding even if we had the right so to do. The evidence discloses that after the two appraisers had been over the damaged property together, looking at it article by article, each with a list of the items in his hand, and after each had visited and examined the property again and again, alone, Way advised Albrecht that he was ready to take up the matter of the loss with him and they made an appointment to meet. Pursuant to such appointment, "Way met Albrecht at the latter’s office and they discussed the loss together. After discussing the matter for a while they finally agreed "that they could not agree on ‘4 anything.” Such is the effect of "Way’s testimony. Defendant’s witness Albrecht testified on his direct examination that he told the umpire when he came that the appraisers couldn’t “agree.” Being asked by counsel for defendant what he meant by that he answered, “Well, Mr. Way and I, we were just differing about the matter, he thinking I didn’t have enough and I thought he hadn’t made a fair estimate, and Mr. Way said the best thing to do is to call the third man in, and I agreed to that.” It seems to us that this was sufficient to justify the trial court in finding that the appraisers could not agree; at least we can discover nothing that would justify us in holding that the contrary had been established conclusively as matter of law in favor of the defendant, who had the burden of proof. ,

Next, the defendant asserts that the appraisers did not submit their “differences” to the umpire. The evidence on behalf of the plaintiff in that respect which the trial court had a right to believe, and did believe, is to the effect that when the appraisers found that they could not agree on “anything” they called in the umpire and told him so and also told him that they would refer the entire matter to him, and that he should examine the loss at his convenience and arrive at his findings and notify them when he was ready to make his findings, and that they would then meet him. The appraisers at that time turned over .to the umpire the lists which they had used in making their several valuations and estimates and which contained an itemized statement of all the damaged goods. Way’s list, at least, contained the notation of his estimate as to valuation and damage opposite each item and we may assume in the absence of evidence to the contrary that Albrecht’s list contained the same, for otherwise there would have been no purpose in his turning the list over to the umpire, and Albrecht would not have testified as he did, as follows: “Q. State whether or not you ever submitted to Mr. G-ruendler at any time, article by article, or otherwise, what'you thought the loss was? A. I did. Q. When? A. Offered to show him the list, but he said he didn’t want to see it.” But it is immaterial why the trier of the facts found that the appraisers and umpire had acted properly, whether because the defendant had failed to prove the contrary, as was incumbent upon it to do, or because the plaintiff’s evidence convinced him; in either event we are concluded by his finding, there being no indication that he acted arbitrarily, under the influence of passion or prejudice. [Pierce Loan Co. v. Killian, 153 Mo. App. 106, 132 S. W. 280.]

Defendant next isolates the statement of the witness Way that the two appraisers “agreed that the umpire should go and view the loss alone, take our lists, draw his own conclusions, and render his own award,” and then lays great stress upon it as if it indicated that the two appraisers had abandoned their functions and allowed the umpire to.go his way alone. We are satisfied from reading the entire testimony that neither the umpire nor the" appraisers had any such intention and that they did not proceed as if they had. After so “agreeing” they called in the umpire and told him that they would refer the entire matter to him and that he should examine the loss, etc., “and notify us when he was ready to make his findings, and that we would then meet him.” Afterwards, having made his examination and arrived at his findings, the umpire did notify the appraisers, and Way went and signed the award, but not. according to his uncontradicted testimony, until he had “agreed” to it. He then testifies that he then went down to Mr. Albrecht’s office and told him what they had done at the umpire’s office; that “we had arrived at the finding's,” etc. Albrecht was “put out” that the award had been made and declined to have anything further to do with it. It is evident that the sole right of decision was not vested solely in the umpire, but each appraiser reserved the right to sign or refuse'to sign the award according to whether it suited him. The umpire so understood and acted upon the understanding, for he tried to get the three to arrive at the findings together; Way did, because he did not sign until he had “agreed” to the award, and Albrecht would not sign at all, being “put out” because they had proceeded without him. It is apparent that the appraisal represented the honest judgment of the umpire and one of the appraisers, and that is all that is necessary under the contract. Nor do we believe that the conduct of the umpire can be justly criticised. There is no basis whatever for the charge that he acted in “a hasty and perfunctory manner in performing his duties under the policy.” He took the lists from the appraisers which embodied their views in detail and with their consent went alone and examined the damaged property. And we are satisfied that this was not a case where the umpire was required or expected to hear testimony. It was rather one where three .experts were chosen because of their peculiar knowledge to view and value the property and estimate the damage, conducting their proceedings in a fair and business-like, but informal, manner. They were selected to make an appraisement, not to hear evidence. The umpire and appraisers were evidently of that opinion, for none of them suggested the necessity of hearing testimony. Nor was it necessary under the circumstances to give notice to the parties themselves or give them opportunity to be heard. [Vincent v. German Ins. Co., 120 Iowa, 272, 278; Townsend v. Greenwich Ins. Co., 83 N. Y. Supp. 909, 911; Ostr. on Fire Ins. (2 Ed.), sec. 261.] It was sufficient that the appraisers selected by them had notice of the meeting in the umpire’s office and were advised of -and acquiesced in the prior proceedings. - [Townsend v. Greenwich Ins. Co., 83 N. Y. Supp. 909.] Nor could the award signed by the two be vitiated by the failure of the defendant’s appraiser to attend at the umpire’s office when notified to do so. [Kerr on Ins., p. 643; Cooley’s Briefs, p. 3644.]

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.