Ozburn v. National Union Fire Insurance

Bell, J.

(After stating the foregoing facts.)

The municipal court of Atlanta was on May 1, 1925, a court of record within the meaning of the act of 1916 providing for the appointment of an umpire to officiate with appraisers in ascertaining the loss under an insurance policy, where the appraisers disagree as to the person to be chosen umpire. A judge of such municipal court was therefore qualified to appoint such an umpire; and this is true notwithstanding the jurisdiction of the municipal court may have been limited to cases in which the sum claimed or sued for was less than the face amount of the policy or the amount claimed thereunder, the appointment of an appraiser, under the act of 1916, not being a judicial act. Ga. L. 1914, p. 178, § 4; Ga. L. 1916, p. 128; Planters & Mechanics Bank v. Chipley, 1 Ga. Dec. 50; Philadelphia Underwriters v. Folds, 156 Ga. 773 (2) (120 S. E. 102).

A clause in an insurance policy which provides that in the event of disagreement as to the amount of the loss the same shall be ascertained by two competent and disinterested 'appraisers, one to be selected by the insured and one by the company, and the two as thus chosen to select a competent and disinterested umpire, and that “the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss,” does not in express terms require that the award shall be signed by “any two” who shall determine the loss, but the language is that the award shall be in writing. While an award made under such a stipulation is neither a common-law nor a statutory award, but is a mere contractual method of ascertaining the loss, it would seem that in the absence of an express requirement that the same should be signed by the appointees concurring therein, the rule as to signatures which obtains in reference to common-law awards would be applicable. In the case of Sheffield v. Clark, 73 Ga. 92 (2), the Supreme Court held that “an award signed by the umpire alone, or by the umpire and one of the arbitrators, is good.” That decision was in reference to a common-law award, and was based upon what is now section 5026 of the Civil Code (1910). See also in this connection 5 C. J. 117, § 270. It follows that the award in the present case, which showed that it represented the joint finding of the umpire and one of the appraisers, though signed by the umpire alone, was “an award in writing of any two” within the meaning of the policy.

The failure of the appraisers to ascertain and state the sound value of the property in accordance with the stipulation as to appraisal might, perhaps, have rendered the award subject to objection duly made, the policy not being a “valued policy” with a total loss thereunder. McInnes v. Southern Home Insurance Co., 142 S. C. 348 (140 S. E. 696); Springfield Fire Insurance Co. v. Homewood, 32 Okla. 521 (122 Pac. 196, 39 L. R. A. (N. S.) 1182). But since the real purpose of the award was to show the amount of the loss (Eberhardt v. Federal Insurance Co., 14 Ga. App. 340 (2), 80 S. E. 856), and since this was done in general terms, the mere failure of the appraisers to state the sound value as one of the facts forming the basis of their conclusion, did not render the appraisal and return absolutely void, but the defect was such as could be waived by the parties.

It appears that in a previous trial the award was admitted in evidence without any objection by the insurer, although it was attacked in the pleadings and the evidence of this party upon certain grounds other than the one stated, and that the case was thereafter litigated through a verdict and judgment in favor of the defendant, followed by the grant of a new trial to the plaintiff. In these circumstances the defendant should be held to have waived any right to object to the award on the second trial upon the ground that it failed to state the sound value, and to have ratified the award as returned in so far as that defect was concerned. The defect appeared upon the face of the document and was therefore necessarily within the knowledge of the parties. An appraisal and award of this kind should be subject to waiver arid ratification upon the same principles as are applicable in cases of common-law and statutory awards, and where a known defect is one which renders the award merely voidable, and not void, any act or omission in legal proceedings or otherwise which is inconsistent with an intention to reject or disaffirm the award because of such defect may be accepted as evidence of a waiver of such defect. Under the facts of this case as recited in the plaintiff's motion for a new trial, the trial court erred in not holding, as a matter of law, that the defendant had waived its right to object to the award upon the ground that it failed to state sound value. See, in this connection, Tyler v. Stephens, 7 Ga. 278 (2); Pike v. Stallings, 71 Ga. 860 (5); Clark v. Thurmond, 46 Ga. 97; 5 C. J. 170-172; 2 Am. & Eng. Enc. Law (2d ed.) 170.

Be it understood that we do not hold that a mere failure to object to evidence upon some ground on one trial will prevent a party from objecting' to the evidence upon that or any other ground on a subsequent trial, where the evidence is subject to the objection finally made under the common rules of evidence. That is not this case. An award is in the nature of a contractual agreement made for the parties by arbitrators, and the failure to state sound value is a defect going merely to a lack of specification as to one of the facts upon which the conclusion as to the amount of the loss was predicated; and certainly it was sucli a matter as could be waived by the parties. We are dealing solely with an incident of a contract and the question of waiver in relation thereto, and the ruling made does not begin to hold that evidence which does not meet the rules of law relating to the competency of evidence can be introduced over an otherwise good objection, merely because it was admitted at some previous trial when no such objection was made. It was said in the Mclnnes case, supra, that such an award was void, but we apprehend that the court intended to hold only that it was voidable upon' a proper objection duly made. No element of waiver or ratification appears to have entered into that case.

The award as offered in evidence was not subject to any of the other objections made. It follows that the court erred in excluding the award from evidence, and in thereafter directing a verdict in favor of the defendant. The appellate division of the municipal court properly ordered a new trial, and the superior court erred in sustaining the certiorari.

Moreover, it w'ould seem that in any view the case was not one for the direction of a verdict, but that upon the failure of the plaintiff to prove his case the court should have granted a nonsuit, since the failure of the plaintiff's proof was due to the exclusion of evidence and he could not have moved to take a nonsuit without waiving the right to except to the ruling upon the admissibility of such evidence. Ilaylorv. Banlc of Carrollton, 37 Go,. App. 664 (2) (141 S. E. 422).

Judgmenl reversed.

Jenlcins, P. J., and Stephens, J., concur.