Mound City Roofing Tile Co. v. Springfield Fire & Marine Insurance

ON MOTION FOR REHEARING. On motion for rehearing defendant's counsel place an erroneous interpretation upon the opinion. They say that the opinion holds that it was not necessary to ascertain the sound value of all the buildings insured in order to determine the amount of the defendant's liability under the coinsurance clause of the policy and that it was not necessary to ascertain the sound value of the damaged buildings in order to determine the amount of the loss or damage to the damaged buildings. The opinion does not so hold. It does hold that it was neither necessary nor proper for the appraisers to ascertain or determine the sound value of all the buildings insured in order to determine the loss or damage to the damaged buildings. It holds that it was both necessary and proper for the appraisers to ascertain the sound value of the damaged buildings in order to determine the loss or damage to the damaged buildings. It also holds that it was both necessary and proper for the appraisers to state in their award separately both the sound value of and the loss or damage to the damaged buildings, as ascertained and determined by them. But the appraisers did not do this. Though they ascertained the sound value of and the loss or damage to the damaged buildings, and stated in their award the loss or damage to the damaged buildings, as they were required to do, they did not state therein the sound value of the damaged buildings, as they were required to do, but they went beyond their powers and duties and ascertained and stated in their award in a lump sum the sound value of all the buildings insured. They not only failed to pursue the terms of the policy with respect to an affirmative requirement but acted in excess of their powers and duties, and their appraisement was abortive. In determining the portion of the loss for which the defendant was liable under the co-insurance clause, the sound value of the buildings insured was an open question for the jury, and such question was determined by them under the evidence in the case. The amount of the loss or damage to the buildings was not an open question for the jury, not because it had been determined by the appraisers, but because it had been agreed upon by the parties.

If all the buildings had been involved in the fire, so that it had been necessary to ascertain the sound value of all the buildings in order to determine the loss or damage thereto, a different question would be here for decision.

Defendant's counsel seem to take the position that the agreement for appraisement executed by the parties sheds some light on the question here not shed by the terms of the policy, and they complain that we have overlooked this agreement. The agreement is as follows (Italics are ours):

"To Mound City Roofing Tile Co., "St. Louis, Mo.

"You claim to hold insurance granted by the under signed and have made claim for loss thereunder. As disagreement exists as tothe amount of loss which is said to have occurred on the 16th day of March, 1923, we request an ascertainment of the amount ofloss, as provided in the insurance. To secure suchascertainment and appraisement of the loss, stating separately sound value and damage, the undersigned selects Bertram Amber of St. Louis, Mo., as a competent and disinterested appraiser, and requests you to select a competent and disinterested appraiser and to advise us of your selection.

"All Insurance Companies insuring property at 3301 Morganford road, St. Louis, Mo.

"Signed" J.H. HARRISON, "A.L. McCORMACK, "Each by E.W. BENTLEY, "Adjusting Agents.

"It is understood and agreed that this appraisal is to take into consideration such property as is to be classed as building structures.

"The undersigned acknowledges the foregoing request for appraisement and hereby selects C.E. Hamilton of St. Louis, Mo., to act as a competent and disinterested appraiser.

"(Signed) MOUND CITY ROOFING TILE CO., "by James J. Masterson, Pres., Claimant."

It is obvious that this agreement amounts to nothing more nor less than a submission to the appraisers under the terms of the policy, to determine the amount of the loss or damage to the damaged buildings, stating separately the sound value thereof and damage thereto, as ascertained by them. There is no suggestion or hint in the agreement that the appraisers shall ascertain and state in their award the value of all the buildings, both damaged and undamaged, as a basis for the determination of the portion of the loss for which the insurer is liable under the coinsurance clause, or the portion of the loss for which the plaintiff is liable as a coinsurer.

The Commissioner recommends that the motion for rehearing be overruled.