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required by the terms of the policy to be submitted to the appraisers, unless otherwise consent is given to a partial appraisement.
Palatine Ins. Co. v. Morton-Scott Co., 106 Tenn. 558, 61 S. W. Rep. 787.
Authority of Officer of Company.
Where the president of a corporation in charge of its business is absent, an officer in temporary charge binds him and it in an agreement of appraisal.
Remington Paper Co. v. London Assur. Co., 12 App. Div. 218, 43 N. Y. Supp. 431.
Authority of Local Agent.
A local agent who acts with the company's adjuster after a loss may be clothed with apparent authority to represent the company in the adjustment and incidentally to receive in its behalf a demand from the insured for an appraisal; at least his authority becomes a question of fact for the determination of a jury; but ordinarily where policy in terms provides that “only such persons as shall have the commission of the company shall be considered its agent," no agent can make an effective demand for an appraisal who does not hold such commission;- a local agent, as such, has no authority in connection with appraisal.3
1. Phænix Ins. Co. v. Stocks, 149 Ill. 319, 36 N. E. Rep. 408. And see Milwaukee Mechanics' Ins. Co. v. Schallman, 90 Ill. App. 280, affd., 188 Ill. 213, 59 N. E. Rep. 12.
2. Mechanics’ Ins. Co. v. Hodge, 46 Ill. App. 479, affd., 149 TII. 298, 37 N. E. Rep. 51.
3. Turner v. Quincy Ins. Co., 109 Mass. 568. As to authority of adjuster, see“ Adjuster.”
RULE 22. Insured Presumed to Know Contents of Appraisal Agreement
Capacity to Contract not Restricted. In the absence of fraud or mistake, assured is conclusively presumed to know the contents of an appraisal agreement made after a fire, and the capacity of the parties to make such a contract is not restricted to the terms of a standard policy, because upon the occurrence of a loss by fire the relation of the parties is changed from that of insurer and insured to that of debtor and creditor; it cannot be varied by parol evidence of verbal agreements, nor by expressions of opinion.
1. Montgomery v. American Central Ins. Co., 108 Wis. 146, 84 N. W. Rep. 175; Michels v. Western Underwriters' Assoc., 129 Mich. 417, 89 N. W. Rep. 56. And see Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. Rep. 458. And see Rules 29, 67.
2. Rutter and Hendrix v. Hanover Ins. Co., Ala. 35 So. Rep. 33; Townsend v. Greenwich Ins. Co., 86 App. Div. 323, 83 N. Y. Supp. 909, affd., 178 N. Y. 634, without opinion.
RULE 23. Appraisal Limited to Determination of Amount. An appraisal and an award, unless otherwise specifically agreed, only operate as determining the amount of loss; the question of liability of the insurance company remains unaffected;1 appraisers are limited to property submitted in schedule or list and have no authority to determine what articles are covered by the policy.?
1. Smith v. Herd (Ky.), 60 S. W. Rep. 841; Townsend v. Greenwich Ins. Co., 86 App. Div. 323, 83 N. Y. Supp. 909, affd., 178 N. Y. 634, without opinion.
2. American Ins. Co. v. Bell (Tex. Civ. App.), 75 S. W. Rep. 319. And see Rules 49 and 59.
When Loss Payable to a Mortgagee - Partners. The insured has the right and the power to enter into an appraisal, according to the terms of the policy, without notice to the mortgagee to whom the loss is payable and without his approval;' but such appraisal does not always bind the mortgagee, whose rights, if any, are fixed at time of loss and cannot be diminished or destroyed by the insured's subsequent action, unless he participated in the appraisal;or had notice;" submission to appraisal by one partner binds the others.5
1. Chandos v. American Ins. Co., 84 Wis. 184, 54 N. W. Rep. 390, 22 Ins. L. J. 425.
2. Georgia Home Ins. Co. v. Stein, 72 Miss. 943, 18 So. Rep. 414; Morris v. German-American Ins. Co., 14 Ky. L. Rep. 859; Bergman v. Commercial Union Assur. Co., 92 Ky. 494, 18 S. W. Rep. 122.
3. Scania Ins. Co. v. Johnson, 22 Colo. 476, 45 Pac. Rep. 431, 25 Ins. L. J. 525.
4. Bergman v. Commercial Assur. Co., 92 Ky. 494, 18 S. W. Rep. 122.
5. Brink v. New Amsterdam Ins. Co., 5 Robt. 104. See “Mortgagor and Mortgagee.”
Policy of the Law as to Place of Adjustment and Selection of
Appraisers and Umpire. The policy of the law is that losses be adjusted where they occur and that appraisers and the umpire be selected in the vicinity of place where fire occurs. An insurance company or its appraiser cannot insist upon the selection of an appraiser or umpire at a distant point from where property was destroyed, when the assured's appraiser offers the names of a number of proper persons to act in that capacity who reside in the vicinity. The conduct of the company's appraiser in refusing to agree upon an umpire in such a case, or in insisting upon the selection of one at a distance, amounts to a refusal to proceed, and the appraisal clause no longer bars an action. Insured is entitled to have his goods appraised at their value in the market where destroyed.2
1. Brock v. Dwelling-House Ins. Co., 102 Mich. 583, 61 N. W. Rep. 67, 24 Ins. L. J. 464; Braddy v. New York Bowery Ins. Co., 115 N. C. 354, 20 S. E. Rep. 477; Hickerson v. German-American Ins. Co., 96 Tenn. 193, 33 S. W. Rep. 1041, 25 Ins. L. J. 422; Chapman v. Rockford Ins. Co., 89 Wis. 572, 62 N. W. Rep. 422; Harrison v. Hartford Ins. Co., 112 Iowa, 77, 83 N. W. Rep. 820; Niagara Ins. Co. v. Bishop, 154 Ill. 9, 39 N. E. Rep. 1102, affg. 49 Ill. App. 388; American Cent. Ins. Co. v. Simpson, 43 Ill. App. 98; McCullough v. Phænix Ins. Co., 113 Mo. 606, 21 S. W. Rep. 207; Fowble v. Phænix Ins. Co., 106 Mo. App. 527, 81 S. W. Rep. 485. And see Harrison v. German-American Ins. Co., 67 Fed. Rep. 577.
2. Chapman v. Rockford Ins. Co., supra.
Exact Distance not Prescribed.
While neither the policy nor the law undertakes to fix the exact distance from place of fire within which the appraisers and umpire must be selected, it has been held that the company cannot insist upon the appointment of persons living 200 miles distant from the place where the property was destroyed;' and the insured cannot be required to submit to appraisal outside his own State.2
1. McCullough v. Phænix Ins. Co., 113 Mo. 606, 21 S. W. Rep. 207; Chapman v. Rockford Ins. Co., 89 Wis. 572, 62 N. W. Rep. 422.
2. American Central Ins. Co. v. Simpson, 43 Ill. App. 98.
Appraisal Clause Operative Only on Damaged Property.
The appraisal clause operates only on damaged property and not on that totally destroyed;' but may include or cover a dispute as to whether or not there was a total destruction; or a dispute as to whether certain property is embraced or covered by the policy; if the company refuses to proceed with appraisal and to include such disputed property, it operates as a waiver of the appraisal condition in the policy; but this rule does not prevent an appraisal agreement to include all or other property."
1. Liverpool, L. & G. Ins. Co. v. Colgin, 34 S. W. Rep. 291; Fire Assoc. v. Colgin (Tex.), 33 S. W. Rep. 1004; Lang v. Eagle Fire Co., 12 App. Div. 39, 42 N. Y. Supp. 539; Rosenwald v. Phænix Ins. Co., 50 Hun, 172, 3 N. Y. Supp. 215. And see Commercial Ins. Co. v. Friedlander, 156 Ill. 595, 41 N. E. Rep. 183, 24 Ins. L. J. 789.
2. Yendel v. Western Assur. Co., 21 Misc. 348, 47 N. Y. Supp. 141; Williamson v. Liverpool, L. & G. Ins. Co. (C. C. A.), 122 Fed. Rep. 59. But see and compare Williams v. Hartford Ins. Co., 54 Cal. 442.
3. Dee & Sons Co. v. Key City Ins. Co., 104 Iowa, 167, 73 N. W. Rep. 594.
4. See Rule 29.
Exception.- In Minnesota the court seems to recognize the appraisal of property wholly destroyed.
Schrepfer v. Rockford Ins. Co., 77 Minn. 291, 79 N. W. Rep. 1005, rehearing denied, 79 N. W. Rep. 1026; Gasser v. Sun Fire Office, 42 Minn. 315, 44 N. W. Rep. 252. And so in Iowa. Adams v. N. Y. Bowery Ins. Co., 85 Iowa, 6, 11, 51 N. W. Rep. 1149. And so in Tennessee. Palatine Ins. Co. v. MortonScott Co., 106 Tenn. 558, 61 S. W. Rep. 787. And see Chippewa Lumber Co. v. Phænix Ins. Co., 80 Mich. 116, but note that the policy in this case in terms required that the award should fix the amount of the “claim.” See Rule 28.
The conflict between this Rule and Rule 28 following is . explainable in different construction by the courts. It might be noted that the Rosenwald case was decided under the old forms. The language of the policy was changed by the standard