Ulmer v. Phcen.Ix Fire Ins. Co. Of

• Decision Date: 06 September 1901
• Citation: 39 S.E. 712,61 S.C. 459
• Parties: ULMER . v. PHCEN.IX FIRE INS. CO. OF BROOKLYN et al.
• Court: South Carolina Supreme Court

39 S.E. 712

61 S.C. 459

ULMER .

v. PHCEN.IX FIRE INS. CO. OFBROOKLYN et al.

Supreme Court of South Carolina.

Sept. 6, 1901.

OPEN INSURANCE POLICIES—INSURABLE INTEREST.

1. 22 St. at Large, p. 113, providing that no insurance company in the state shall issue policies for more than the stated value, and in case of total loss insured may recover the full amount, not prescribing any rule of evidence in regard thereto, nor any penalty against writing an open policy, does not prohibit the issuance of such a policy.

2. A person who has contracted to build a house and furnish the materials for a fixed sum, has an insurable interest to the value thereof, though he has received nearly payment of the price in full.

Appeal from common pleas circuit court of Orangeburg county; Watts, Judge.

Action on insurance policy by B. D. Ulmer against the Phoenix Fire Insurance Company of Brooklyn, N. Y., A. F. Horger, Alice E. Inabinet, and W. S. Kemmerlin. Prom judgment for plaintiff, he appeals. Reversed.

Thos. F. Brantley and Wm. C. Wolfe, for appellant.

Izlar Bros., for appellees.

JONES, J. The plaintiff appeals from a judgment for $82.92 in his favor in this action on a fire insurance policy issued by the defendant for $150. The questions raised by the exceptions are as to the proper construction of the policy and the extent of the Insurable interest of the insured plaintiff. It appears from the evidence submitted in behalf of the plaintiff that on December 4,

1898, the plaintiff, Ulmer, entered into a written contract with one A. F. Horger, by which plaintiff, as contractor, agreed to build for Horger a dwelling house according to specifications, for which Horger agreed to pay $300 in weekly Installments, $50 to be held back until the completion of the house. A. E. Inabinet became surety for Horger on this contract, and as the work progressed paid or advanced to Ulmer, upon the request or order of Horger, sums aggregating $287.22. On the 4th day of March, 1899, while the building was being constructed, Ulmer procured the policy in question, by which the defendant, in consideration of the $1.35 premium, agreed to "insure B. D. Ulmer, contractor, for the term of thirty days from the 4th day of March, 1899, at noon, to the 4th day of April, 1899, at noon, against all direct loss or damages by fire, except as hereinafter provided, to an amount not exceeding $450, to the following described property, while located and described herein, and not elsewhere, to wit: $450 on one-story, shingle-roof building, now in course of construction, and all building material to be used for same, lying adjacent to said building, situate in the town of Jamison, Orangeburg county, S. C." This was made subject to the three-fourth value clause attached to the policy. There was no slip attached, such as is usual since the act of February 28, 1896, fixing the value of the building and the amount of Insurance. The policy contained the provisions usual in the "standard" policy, among which is the following: "This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be pay-able sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company at their office in Atlanta, Ga., in accordance with the terms of this policy." The building was totally destroyed by fire on the night of the 3d of April, 1899. At that time the building was not quite completed, and had not been turned over to Horger. There was some testimony tending to show that certain extra work had been done on the building by agreement between Ulmer and Horger, reasonably worth $65. The verdict included this $05 for extra work, $12.73 balance due Ulmer on the original contract, and $5.19 interest, as the extent of the loss under the policy.

Construing the policy, the circuit court instructed the jury as follows: "Now, I will tell you what that contract of insurance is. The insurance company entered into a contract with the plaintiff for what? To indemnify and secure him against loss he might sustain by reason of the building which he had contracted to build, in case that building, or any of the material on the premises, which was to be used in the erection of that building, should be destroyed, to a sum not exceeding the sum of $450. Now, was the building destroyed by fire? And, if so, the plaintiff then would be entitled to recover such damages as he has sustained by reason of the destruction of such property by fire, not to exceed the amount of $450. That policy does not mean that, as soon as the house was destroyed by fire, the plaintiff was entitled to recover $450 from the insurance company, but meant that he was to recover that amount if that was the damage done him by the fire. In other words, he was to recover just such injury as he had sustained by reason of the fire, whatever the injury amounted to, provided it didn't exceed the sum of $450. The insurance company guarantied him against any loss to the extent of $450 which he might sustain by reason of the property being destroyed by fire; that is, the house in the course of erection, and the lumber on the ground adjacent thereto, which was to be used in the construction of the house." It is excepted that this construction is erroneous, because contrary to the provisions of the act of 1890 (22 St. at Large, p. 113), and the argument is that the policy is what is known as a "valued" policy, and is not an "open" policy, and that upon a total loss the defendant company was liable for the whole $450. The statute provides: "That hereafter no fire insurance company, or individual writing fire insurance policies, doing business in this state, shall issue policies for more than the value to be stated in the policy, amount of the value of the property to be insured, the amount of insurance to...