O'Keefe v. Liverpool & L. & G. Ins. Co.

• Decision Date: 06 July 1897
• Court: Missouri Supreme Court
• Parties: O'KEEFE v. LIVERPOOL & L. & G. INS. CO.

41 S.W. 922

140 Mo. 558

O'KEEFE v. LIVERPOOL & L. & G. INS. CO.

Supreme Court of Missouri, Division No. 2.

July 6, 1897.

FIRE INSURANCE — VALUED POLICY LAW — TOTAL LOSS — ARBITRATION.

1. Within Rev. St. 1889, § 5897 (the valued policy law), there is "a total loss" of an insured building by fire where only the foundation, and a portion of a wall which cannot be utilized at less expense than if built anew, are left unimpaired.

2. An agreement to arbitrate a total loss is void under the valued policy law.

Appeal from circuit court, Jackson county.

Action by John C. O'Keefe against the Liverpool & London & Globe Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Fyke, Yates & Fyke, for appellant. Wallace & Wallace, for respondent.

GANTT, P. J.

This is an action upon a policy of insurance issued by the defendant to the plaintiff on the 15th day of May, 1894, insuring plaintiff for one year against loss or damage by fire, to an amount not exceeding $3,000, to his two-story and foundation brick, gravelroof building, with its additions, porches, steam, gas, and water pipes, plumbers' work and fixtures, steam-heating apparatus and connections and piping, stone and prismatic sidewalks adjoining, plate glass, skylights, and all permanent improvements therein. The policy contained this provision: "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 deductions 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 shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided. It shall be optional, however, with this company * * * to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice * * * of its intention so to do." "If fire occurs, the insured shall furnish, if required, verified plans and specifications of any building destroyed or damaged." "In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, 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." "The loss shall not become payable until after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required." "No suit or action on this policy shall be sustainable until after full compliance by the insured with all the foregoing requirements." On June 3, 1894, a fire occurred, by which plaintiff claimed the building was wholly destroyed, in contemplation of the statute of this state, and defendant claimed that there was only a partial loss, and demanded an arbitration. The great burden of the testimony was to the effect that the front, which consisted of iron pillars and brick superstructure, was rendered useless in the condition in which it was left. The pillars were warped, and the wall above them sprung out of plumb. The side walls of the lower story were so badly burned that the architects and carpenters testified that the building could not be repaired; that the old walls would have to be taken down, and the building rebuilt from the foundation up. It appeared, however, that a portion of one of the walls in the second story was not ruined by the fire, and the effort of defendant was to show that this wall could be shored up, and the burnt portion in the first story taken out and rebuilt; but the architects and builders testified that this would be much more costly than taking down the whole of the walls, and building them anew, and, even if done, would not be as good as it was before the fire. The joists were burnt, and the roof and window sills destroyed. The main contention is based upon the evidence that, so far as the witnesses could see, the foundation was not hurt much, if any. Two builders testified for defendant as to their estimates for rebuilding the house. One, Mr. Kelley, testified it could be repaired and replaced for $1,738.45; the other, Mr. Hucke, estimated it at $1,688.50; but neither testified it could be done without taking down all the old walls. Plaintiff offered testimony of builders, also, who estimated the loss, one at $3,419.50, the other at $3,752. The other defense set up in the defendant's answer — the failure of the plaintiff to furnish the defendant with plans and specifications of the building — grows out of the correspondence between the parties. The company wrote Mr. O'Keefe, under date of June 12th, demanding an adjustment of the damages by appraisers....