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Action on insurance policy. Before Judge Lowe. Fulton Civil Court.
In a suit brought for the full amount of a fire-insurance policy, in which suit the defendant insurers set up an appraisal of the loss in a smaller amount which the plaintiff had refused to accept, and in which the plaintiff, by amendment, sought to set aside the appraisal on grounds of fraudulent interference, the evidence authorized the finding of the court without a jury agaisnt the plaintif's contentions and for the plaintiff only in the amount of the loss as fixed by appraisal under the terms of the policy; and, as error was not shown in the admission of evidence, the court did not err in refusing a new trial.
Moye O. Gilder brought suit for $4,000 against Underwriters at Lloyd's upon a policy of insurance covering damage by fire to a Mack tractor, but not covering damage resulting from collision or upset. Gilder's tractor was being used to pull a trailer from Griffin, Georgia, to Bath, South Carolina, on March 3, 1952. It struck some broken pieces of machinery lying on Route 16 between Monticello and Eatonton, went out of control, and turned over on the side of the road. Gasoline from the tank ignited and burned the tractor and trailer.
The Underwriters and Gilder were unable to agree as to the amount of loss attributable to fire. The Underwriters demanded an appraisal of the fire loss pursuant to the following policy provision: "If the assured and the Underwriters fail to agree as to the amount of loss, each shall, on the written demand of either, made within sixty days after receipt of proof of loss by the Underwriters, select a competent and disinterested appraiser and the appraisal shall be made at a reasonable time and place. The appraisers shall first select a competent and disinterested umpire, and failing for fifteen days to agree upon such umpire, then, on the request of the assured or the Underwriters, such umpire shall be selected by a judge of a court of record in the county and state in which such appraisal is pending. The appraisers shall then appraise the loss, stating separately the actual cash value at the time of loss and the amount of loss, and failing to agree shall submit their differences to the umpire. An award in writing of any two shall determine the amount of loss. The assured and the Underwriters shall each pay his or its chosen appraiser and shall bear equally the other expenses of the appraisal and umpire."
The parties entered into an agreement appointing James H. Knight (for Gilder) and George S. Barnes (for the Underwriters) to appraise the amount of loss directly caused by fire, and stating that "It is hereby agreed by both parties that if this appraisal is held in accordance with terms and conditions of the policy contract, the award is binding on both parties."
By amendment, the plaintiff sought to avoid the appraisal of the loss at $775. It had also been agreed, he contended, that the appraisers would qualify by their sworn declaration; that an umpire would be selected first; and that the appraisers were to go upon their own knowledge and experience without influence from either party. Gilder further alleged that the date of September 11, 1952, on which the appraisers were purported to have qualified, was untrue and was inserted fraudulently to conceal their failure to make a true appraisal; that the umpire had been selected and qualified by the Underwriters' appraiser before Gilder's appraiser had qualified; and that the award was so inadequate as to justify the conclusion that it was determined by the misrepresentations and misleading actions and statements of the Underwriters' appraiser.
The case was tried before the court without a jury, and, after hearing evidence, the court entered judgment for the plaintiff in the amount of the award. The plaintiff's motion for new trial was denied, and exception is taken to that judgment.
1. The court did not err in admitting the document offered in evidence by the defendant which contained the submission agreement and appraisal, over the objection made on the trial and set out in the first special ground of the motion for new trial: that it was not a true copy and did not show that it was properly executed and sworn to. Different notaries appeared as having sworn the appraisers, and there was a variance in the date of the umpire's oath of qualification. That the appraiser's oath appeared to have been administered by different notaries would be no objection to the admission of their appraisal; and, as the umpire was not called upon to act, his selection and qualification were unnecessary to the validity of the proceeding. Universal Laundry & Cleaners, Inc. v. General Insurance Co., 64 Ga. App. 68 (12 S. E. 2d 181).
3. With regard to the general grounds of the motion for new trial, it appears that the appraisers were appointed as provided in the policy; that they met and inspected the damaged tractor; and that they agreed upon $775 as representing the loss attributable to fire. Since this proceeding was not a statutory arbitration, but was merely a method of ascertaining loss where liability in some amount under the terms of the policy was admitted, and since there were no provisions in the contract requiring the appraisers to qualify under oath, any defects in the manner in which the appraisers were sworn are immaterial. Alliance Ins. Co. v. Williamson, 36 Ga. App. 497 (3) (137 S. E. 277). The terms of the policy providing for an appraisal are unambiguous, and parol evidence was not competent to explain or add to them; nor was the testimony of the appraisers themselves competent to impeach their finding of the amount of fire loss. Eberhardt v. Federal Ins. Co., 14 Ga. App. 340 (80 S. E. 856); Johns v. Security Ins. Co., 49 Ga. App. 125 (174 S. E. 215); Overby v. Thrasher, 47 Ga. 10.
While there was some evidence tending to show ex parte interference by the Underwriters' adjuster with the proceedings of the appraisers, in submitting previously made estimates of costs of repair to the appraisers, this evidence was in conflict with the testimony of Barnes to the effect that the appraisers did not have or receive any estimates, other than salvage offers which they had secured themselves. The court was authorized to accept this testimony in support of the appraisal.
Several witnesses testified that the value of the truck before the upset and the fire was at least $4,000. Various witnesses estimated the loss due to the upset at $225, $800, $2,000, and $3,250. The highest bid obtained by the plaintiff for salvage of the truck was $256. The finding of the appraisers fixing the fire loss at $775 was not so inadequate as to require the court to set the appraisal aside.
Accordingly, the judgment of the court without a jury is supported by the evidence, and it was not error to refuse a new trial.
Dudley Cook, contra.
Saul Blau, David Krasner, for plaintiff in error.
Saturday May 23 03:36 EDT

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