Stevens v. Norwich Union Fire Ins. Co.

Decision Date09 July 1906
Citation96 S.W. 684,120 Mo. App. 88
PartiesSTEVENS v. NORWICH UNION FIRE INS. CO.
CourtMissouri Court of Appeals

A fire policy insured $600 on household goods. A portion of them were rescued from the fire. Those saved amounted in value to $100, and those destroyed to $800. Held, that the loss was only partial, requiring in case of disagreement as to the amount of the loss, the submission to appraisement as provided for in the policy.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by A. J. Stevens against the Norwich Union Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is a suit on a policy of fire insurance issued by the defendant insurance company in favor of the plaintiff, covering a frame residence and household goods therein owned and occupied by him in the city of West Plains. In so far as material to the questions involved in the present controversy, the policy in suit is as follows: "Norwich Union Fire Insurance Society in consideration of $20.70 premium and the conditions and stipulations herein contained, does hereby insure A. J. Stevens against loss or damage by fire from noon of the 2d day of December, 1904, to noon of the 2d day of December, 1907, as follows: Nine hundred dollars on 1½ story shingle roof frame building and additions attached thereto, while occupied as a private dwelling house, including all permanent fixtures and decorations and to include window and door screens, storm doors and awnings, while contained in or attached to said buildings, situate on lot 2, block 12, Howell's addition, West Plains, Mo. Six hundred dollars on household furniture, useful and ornamental, mirrors, beds, bedding, linen, family wearing apparel, watches and jewelry (in use), printed books and music, silver plate and plated ware, pictures, paintings, engravings and their frames (at not exceeding cost), sewing machines, musical instruments, fuel and family stores, trunks, satchels, canes, umbrellas and bric-a-brac, while contained therein. 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 payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the article at such ascertained or appraised value, and also to repair, rebuild or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described. 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; stating separately sound value and damage, 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 parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire. And the loss shall not become payable until sixty days 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." The petition is in the usual form, alleges a total destruction by fire of the property insured and the full performance by the plaintiff of all conditions of the policy on his part. The answer admits the issuance of the policy and a loss by fire thereunder, and among other things, specifically denies that the dwelling house was wholly destroyed, and affirmatively pleads the condition of the policy quoted, which provides, in effect, that in event of loss and disagreement between the parties as to the amount thereof, the same shall be ascertained by competent appraisers, etc. It avers that after the fire a disagreement arose between plaintiff and defendant with respect to the amount of the loss on both the building and household goods, so that an appraisal thereof was required, and that no such ascertainment of the loss by appraisal has been had, and that, therefore, plaintiff is not entitled to recover. It further denies every allegation in the petition contained which was not expressly admitted to be true. The reply is a general denial. The proposition advanced by the plaintiff and upon which he predicates his suit is that the loss was total on both the residence and contents; or, in other words, that the property, both real and personal, was wholly destroyed, within the meaning of the statute, and therefore the condition of the policy with respect to arbitration does not apply, while the counter-proposition advanced by the insurance company is that the loss was partial only on both the residence and household goods and therefore the arbitration agreement in the policy does apply and operates as a condition precedent to plaintiff's...

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