Lux v. Milwaukee Mechanics' Fire Ins. Co.

• Decision Date: 11 May 1929
• Docket Number: 28706
• Citation: 16 S.W.2d 595
• Parties: LUX v. MILWAUKEE MECHANICS' FIRE INS. CO
• Court: Missouri Supreme Court

16 S.W.2d 595

LUX v. MILWAUKEE MECHANICS' FIRE INS. CO

No. 28706

Supreme Court of Missouri

May 11, 1929

For majority opinion, see 15 S.W.2d 343.

OPINION

WALKER J.

Majority Opinion Reported at 15 S.W.2d 343.

DISSENT BY:

WALKER, J.

I do not concur in either the reasoning or the conclusions of the majority opinion. A statement of the facts is necessary to an understanding of the reasons underlying this dissent.

This is an action on a policy of fire insurance issued January 9 1918, on a residence owned by the plaintiff in Kansas City which was partially destroyed by fire January 30, 1918. On the 15th day of March, 1918, the plaintiff brought suit in the circuit court of Jackson county against the defendant to recover the face value of the policy, $ 3,500, with interest from the date of the demand for payment to that of the trial. Tried to a jury, September 28, 1927, there was a verdict in favor of the plaintiff in the sum of $ 5,499.38, being the amount of the face of the policy and interest thereon from March 21, 1918, to the date of the trial. A judgment was entered thereon from which the defendant has appealed. Our jurisdiction arises from the claim made by the defendant as to the constitutionality of a municipal ordinance of Kansas City introduced in evidence by the plaintiff as material to his recovery.

After the introduction in evidence of the policy, which is in the conventional form authorized by the laws of this state, the plaintiff testified that when the property was burned he and his wife were at a relative's in a different part of the city. Informed of the fire, he went home and found that the fire company had extinguished the flames, but only after the house was badly burned; that the next morning he notified the agent of the insurance company of his loss, and that the latter advised him to go and see the company's insurance adjuster, named Proudfit, which he did, and the latter directed him to board up the doors and windows. He complied with this direction, and the adjuster suggested that he acquaint an expert with the facts concerning his loss. The expert, after reviewing the facts, estimated the plaintiff's loss at $ 1,400. This amount was submitted to Proudfit, who refused to recommend its payment, but proposed to recommend the payment of less than a half of the estimated loss. The plaintiff refused to accept the amount offered, and stated that he did not insist on a cash settlement, but would be satisfied if the defendant would repair the building, by putting it in the condition it was before the fire.

The plaintiff then introduced in evidence a notice received by him from the superintendent of buildings of Kansas City, which is as follows:

'Official Notice of Unsafe Structure.

'Superintendent of Buildings, Kansas City, Missouri, February 15, 1918, to I. M. Lux, 3604 Thompson Street, Kansas City, Missouri:

'Upon an official examination and inspection of the frame building located at 3604 Thompson street in Kansas City, Missouri, by Chas. Lyons, a regular qualified inspector of this department, the following conditions were found to exist respecting said building, to wit:

'Impaired by fire and dangerous to adjoining neighborhood, and you, as the owner of such building, are hereby notified to cause such building to be torn down to the satisfaction of building department.

'To at once.

'And unless you commence the work by 12 o'clock noon at the 'at once' day following the reception of this notice, and employ sufficient labor to do the same as expeditiously as it can be done, then such proceedings will be taken in hand against you as are authorized by Ordinance No. 38,919 of the city of Kansas City, Missouri, approved March 9, 1908.

'[Signed] F. B. Hamilton, Superintendent of Buildings.

'(J. H.)'

Prior to the service of the foregoing notice on the plaintiff an inspection of the building had been made by the department of public buildings of Kansas City, and the plaintiff's building had been condemned as unsafe, and a condemnation notice had been posted on the same. When the plaintiff received the notice from the superintendent of buildings, he notified the agent of the defendant of its purport and the latter said: 'It is your building; go ahead. I don't care what you do with it.' After the building was torn down by the plaintiff in compliance with the condemnation ordinance, he notified the defendant and demanded payment of the amount of his damages, which was refused.

An objection was made by the defendant to the introduction in evidence of this notice, on the ground that there was no ordinance authorizing the building inspector to give the same, and that it was not signed by the inspector himself. The court overruled the contention as to the defect in the signature, and held that proof should be made showing the authority of the building inspector in the premises. The plaintiffs then offered in evidence section 8 of Ordinance No. 38,919, of the Ordinances of Kansas City, approved March 9, 1908, to the introduction of which the defendant objected on the ground that said section was in violation of those provisions of the state and federal Constitutions prohibiting the taking of property without due process of law. This objection was overruled, and the section (8) was introduced in evidence, and is as follows:

'Sec. 8. The superintendent of buildings shall have full discretionary powers of declaring to be a public nuisance any building, any structure or part thereof that is unsafe as to fire or for the purpose used, or has become unsafe from fire, decay or other causes, and shall institute such proceedings and take such steps as may be necessary for the immediate abatement of any and all such nuisances.'

The plaintiff then offered in evidence section 255 of said ordinance, which was objected to by the defendant on the ground that it had not been shown that any action under section 8, supra, or section 255 of said ordinance, had been taken. This objection was overruled and section 255 was introduced in evidence and is as follows:

'Sec. 255. Any owner, or occupant or agent so notified as above provided who shall fail, neglect or refuse to comply with such notice within the time provided by such notice shall be deemed guilty of a misdemeanor, and every day's continuance of such nuisance shall be deemed and taken to be a separate and distinct offense: Provided, that if the nuisance shall continue unabated the police may, in addition to the usual judgment of conviction, render a judgment that such nuisance be abated at the cost of the offender, and issue a warrant for such purpose to the chief of police, who shall forthwith proceed to execute the same. Whenever said building and premises are unoccupied and the owner or agent thereof cannot be found within Kansas City, Missouri, and the buildings or improvements upon such premises shall be dangerous to the public safety, or prejudicial to the public health of the inhabitants of the neighborhood, the superintendent of buildings shall have authority to enter upon said premises and to abate or remove any nuisance thereon with the least injuries to the property and shall not be liable to the owner of said property for any such acts. The board of public works is hereby authorized to provide for the payment of all expenses incurred by the superintendent of buildings in carrying out the provisions of this section.'

The plaintiff then offered in evidence section 275 of said ordinance, which was objected to for the same reasons urged against the introduction of section 255, and upon the overruling of the objection the section was introduced in evidence and is as follows:

'Sec. 275. All notices of the violation of any of the provisions of this Code and all notices directing anything required by this Code to be done, and all other notices that may be authorized to be issued thereunder, including any notice that any building, structure, premises, or any part thereof, is deemed unsafe or dangerous, shall be issued by the superintendent of buildings and shall have his name affixed thereto, and may be served by any person, by him authorized so to do. Such notice or order shall contain a description of the building, premises or properties on which such violation shall have been put or may exist, or which may be deemed unsafe or dangerous or to which such notice or order may refer.'

Testimony was offered by the defendant, and excluded by the court, the purpose of which was to show in a detailed statement the cost of repairing the building. The total of this estimate was $ 1,400. A deed was offered in evidence by the defendant from his grantor, showing that the price paid for the property was $ 1,100. A portion of an original petition filed in the case was introduced in evidence by the defendant, to show by an allegation in the nature of an admission that, under proper conditions, the building could have been repaired.

The assignments of error are as follows: That the court erred (1) in admitting in evidence certain sections -- designating them -- of Ordinance No. 38,919; (2) in admitting in evidence the notice given by the city building inspector to the plaintiff to tear down the building; (3) in refusing to permit the defendant to introduce testimony as to the damage to the building caused by the fire; (4) in ruling that the action of the building inspector was conclusive in declaring the building to be a nuisance; (5) in giving a peremptory instruction to the jury to find for the plaintiff; (6) and in holding that the sections introduced in evidence of Ordinance No. 38,919 were not in violation of the state and federal Constitutions; (7) and in not setting aside the verdict as excessive.

I. The question determinative of the...