The plaintiffs, respondents, held three policies of fire insurance upon a house belonging to them, the agreed valuation of which, as declared in each policy, was $4,000. One of the policies was issued by the Home Insurance Company, and the other two by the Fidelity Company; each being in the sum of $1,000. While the policies were in force the house was damaged by fire. The parties were unable to agree upon an adjustment of the loss, and, as the policies provided under such circumstances, an appraisal agreement was entered into, providing for the appointment by each party of "a competent and disinterested appraiser," and, in the event of their disagreement, for the appointment of an umpire to whom their differences only should be submitted.
The appraisal agreement further provided:
"The appraisers shall then appraise the loss and damage, stating separately sound value and loss or damage to each item. * * * An award in writing, so itemized, of any two, when filed with this company, shall determine the amount of sound value and loss or damage."
The appraisers and umpire were duly selected; they went upon the premises, inspected the damaged building, and filed a written and signed award as follows:
"We * * * have estimated and appraised the sound value of the property herein described and the loss and damage thereto caused by said fire, and our award is as follows:
The insured declined to accept the award, and instituted two actions against the companies named, for the full *Page 297
________________________________________________________________
| Loss and |
Sound Value | Damage |
_____________________________________|______________|___________
Property described under first | |
item of policies ......... | (blank) | $ 275.00
* * * * * | |
| |
Total sound value ............ | $275.00" |
Total loss and damage ........ | (blank) |
_____________________________________|______________|___________
amounts of the three policies, aggregating $3,000. The defendants answered admitting the issuance of the policies, the fire, and a loss, but relied upon the award as fixing the loss at $275, which was tendered and refused.
The case came on for trial before Judge M.S. Whaley and a jury on September 26, 1927. By consent they were tried together, and by agreement of counsel, the jury found one sum as the entire loss and damage. The verdict of the jury was for the sum of $540. Judgments were duly entered for proper pro rata amounts.
Upon the trial the defendants offered in evidence the appraisal agreement and the award. The plaintiffs objected to the introduction of the award upon the ground that it "was not such an award as was contemplated by the insurance policies sued upon and by the statutes of the state, and because the award shows on its face that it was incomplete and not according to the statutes or the terms of the policy, and especially because the award was not in conformity with Section 5602, Vol. 3, Statutes 1922. After hearing argument upon the objection of the introduction of said appraisal, the same was marked for identification and later received in evidence. * * *" (Note. — It will be observed that the objection is entirely wanting in specifications, other than that the award did not comply with the statute named, which has absolutely no application to the matter in controversy.)
The attack upon the award upon the possible ground that it did not specify the sound value of the building was not urged, the plaintiffs apparently relying upon their objection *Page 298 that no notice of the meeting of the appraisers was given to them and their dissatisfaction with the amount of the award. They offered evidence tending to show that the award was much too low, and persuaded his Honor, the trial Judge, to submit to the jury the question whether, under the circumstances, they were entitled to notice of the meeting of the appraisers. No imputation of fraud, partiality, or other improper conduct on the part of the appraisers has been suggested.
The first question which the appellants raise, as stated in the brief of counsel is:
"I. Does the failure of appraisers (acting under the appraisal agreement provided for in a standard fire insurance policy) to give notice to the assured of the time and place of their meeting for the purpose of fixing the loss and damage so affect the award of appraisers as to warrant the Court in setting it aside and permitting the jury to pass on the damage?"
In the opinion submitted by Mr. Justice Stabler, this question is answered in favor of the appellants, in which conclusion I concur.
The second question is:
"II. Is it proper for the jury to decide whether notice of the meeting of the appraisers should be given the assured in a particular case?"
This, too, is answered in favor of the appellants, and in that conclusion I concur.
The third question is:
"III. In a suit where an award is pleaded as a bar to the action, should the jury be allowed the discretion of disregarding the award, if in their judgment the amount of the award is inadequate, in a case where there is admittedly no fraud, express or implied, and no palpable mistake of fact involved?"
This, too, is answered in favor of the appellants, and in this conclusion I concur. *Page 299
Any one of these grounds, I think, are sufficient to reverse the judgment. Opposed is the position taken by the respondents:
"In addition to the foregoing questions, which the appellants say are involved in the appeal, there is the additional question as to whether or not the appraisal agreement, and the award made pursuant thereof, is such an award as is contemplated by the insurance policies and the statute laws of the State. This question is raised by the respondents' motion to sustain the judgment below upon additional grounds."
In reference to it the proposed opinion declares:
"This being an action at law, the Court will not consider the respondents' additional ground for sustaining the judgment.Bonham v. Bishop, 23 S.C. 105; Lewis v. Hinson,64 S.C. 571, 43 S.E., 15."
It is added:
"However, the question raised was necessarily passed upon by the Court in its disposal of one of the assignments of error made by the appellant."
I assume that this has reference to the second exception, which assigns error in refusing the motion of the defendants for a directed verdict in favor of the plaintiff for the amount of the award, $275. The award was admitted in evidence, whether rightly or otherwise, and was before the jury, showing the loss and damage at $275. If the verdict had been for the plaintiffs in that amount, and the plaintiffs had appealed, the question of the validity of the award would have been before the Court; but, as counsel for the plaintiffs declare in their printed brief:
"This question is raised by the respondents' motion to sustain the judgment upon additional grounds."
The record shows that that is the only way in which the matter has been presented, and the opinion declares, rightly, that it cannot be so raised, citing cases. Besides, it is held in the Aiken case, 137 S.C. 248, 134 S.E., 870, that if the *Page 300 sound value had been given in the award, it should be rejected as surplusage.
I may say that I did not agree with the conclusion of the Court in that case, and think that in a case of partial loss it is essential to the validity of an award that the sound value of a building be stated, so that the proper ratio of the insurance may be determined. That question, however, has been raised only in the mode the opinion declares improper. The defect is, if it could be considered, as much against the insured as against the insurers, for without it there is no substantial support for the verdict.
I think, therefore, that the judgment should be reversed, and the case remanded for judgment under Rule 27, or at the least that a new trial be ordered.