Blaetz v. National Fire Ins. Co.

• Decision Date: 21 February 1927
• Docket Number: No. 19556.,19556.
• Citation: 293 S.W. 504
• Parties: BLAETZ et al. v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN.
• Court: Missouri Court of Appeals

293 S.W. 504

BLAETZ et al. v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN.

No. 19556.

St. Louis Court of Appeals. Missouri.

February 21, 1927.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action on a policy of insurance by Rose Blaetz and others against the National Fire Insurance Company of Hartford, Connecticut. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

Brownrigg, Mason & Altman, of St. Louis, for respondents.

SUTTON, C.

This is an action on a policy of insurance against loss or damage by fire or lightning, covering in the sum of $4,000 a two-story brick building situate at the northwest corner of Second street and Russell avenue, in the city of St. Louis. The policy was issued on August 14, 1919, for a period of 5 years. On July 16, 1923, while the policy was in force, the building was struck by lightning, and it is for the damage thus caused that this action is brought.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiffs for the sum of $3,000, and the defendant appeals.

The policy provides as follows :

"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 60 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 articles 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 30 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 amount of the loss was submitted to appraisement under the terms of the policy. The agreement for the appraisement executed by the parties commissioned the appraisers to ascertain and appraise the loss, "as provided in the insurance, stating separately sound value and damage." The defendant selected A. H. Stiel, and the plaintiffs selected Henry Luehrmann, as appraisers. The appraisers selected August F. Schuermann as umpire. On August 25th, appraiser Stiel and umpire Schuermann made their award in writing signed by them, appraiser Luehrmann refusing to sign the same, whereby they stated that they had examined the premises and remains of the property involved in accordance with their appointment, and had determined the sound value and loss and damage to be as follows:

"Total sound value and total loss and damage $45."

There was a chimney on the north side of the building about 10 feet from the northwest corner thereof. There was a lower doorway across the southeast corner of the building, with the upper portion of the corner supported by an iron post. The stroke of lightning knocked the chimney off the northwest corner of the building, cracked the walls on each side of the iron post, and shattered the concrete setting, which was under the post and on top of the stone foundation. The cracks on each side of the southeast corner went entirely through the brick walls and were about 2 inches wide. The walls at the southeast corner were so displaced by the stroke that immediately afterwards it was found that the door could not be opened except with a crowbar. The lower part of the building was occupied as a store, and the second floor for dwelling purposes. The building fronted 35 feet on Second street and 35 feet on Russell avenue. After the building was struck by lightning, the cracks in the walls gradually became wider and the walls began to bulge, so that it became necessary for the plaintiffs to shore up the walls to prevent them from falling. Plaintiffs had the building repaired at a cost of $2,800, and the shoring of the walls cost $200. It is not controverted that the damage done to the building by the lightning stroke was...