Boise Ass'n of Credit Men, Ltd. v. United States Fire Insurance Co.

• Decision Date: 07 May 1927
• Docket Number: 4465
• Citation: 256 P. 523,44 Idaho 249
• Court: Idaho Supreme Court
• Parties: THE BOISE ASSOCIATION OF CREDIT MEN, LTD., a Corporation, Respondent, v. UNITED STATES FIRE INSURANCE COMPANY, a Corporation, and NATIONAL UNION FIRE INSURANCE COMPANY, OF PITTSBURG, PA., a Corporation, Appellants; Same Respondent v. SPRINGFIELD FIRE & MARINE INSURANCE COMPANY, OF SPRINGFIELD, MASS., a Corporation, NATIONAL UNION FIRE INSURANCE COMPANY, a Corporation, and THE UNITED STATES FIRE INSURANCE COMPANY, a Corporation, Appellants; Same Respondent v. ROYAL INSURANCE COMPANY, LTD., a Corporation, NATIONAL UNION FIRE INSURANCE COMPANY, OF PITTSBURG, PA., a Corporation, and UNITED STATES FIRE INSURANCE COMPANY, a Corporation, Appellants; Same Respondent v. NATIONAL UNION FIRE INSURANCE COMPANY, a Corporation, and UNITED STATES FIRE INSURANCE COMPANY, a Corporation, Appellants; Same Respondent v. UNITED STATES FIRE INSURANCE COMPANY, a Corporation, Appellant; Same Respondent v. NATIONAL UNION FIRE INSURANCE COMPANY, OF PITTSBURG, PA., a Corporation, Appellant; Same Respondent v. INSURANCE COMPANY OF NORTH AMERICA, a Corporation, Appellant; Same Respondent v. PACIFIC STATES FIRE INSURANCE COMPANY, a Corporation, and L. MCFADDEN, Appellants; Same Respondent v. PACIFIC STATES FIRE INSURANCE COMPANY, a Corporation, Appellant; Same Respondent v. UNION ASSURANCE SOCIETY, LTD., a Corporation, Appellant; Same Respondent v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Corporation, Appellant; Same Respondent v. HARTFORD FIRE INSURANCE COMPANY, OF HARTFORD, CONN., a Corporation, Appellant; Same Respondent v. SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY, OF SPRINGFIELD, MASS., a Corporation, Appellant; I. R. SMITH, Respondent, v. PACIFIC STATES FIRE INSURANCE COMPANY, Appellant; I. R. SMITH, Respondent, v. UNITED STATES FIRE INSURANCE COMPANY, Appellant

256 P. 523

44 Idaho 249

THE BOISE ASSOCIATION OF CREDIT MEN, LTD., a Corporation, Respondent, v. UNITED STATES FIRE INSURANCE COMPANY, a Corporation, and NATIONAL UNION FIRE INSURANCE COMPANY, OF PITTSBURG, PA., a Corporation, Appellants; Same Respondent v. SPRINGFIELD FIRE & MARINE INSURANCE COMPANY, OF SPRINGFIELD, MASS., a Corporation, NATIONAL UNION FIRE INSURANCE COMPANY, a Corporation, and THE UNITED STATES FIRE INSURANCE COMPANY, a Corporation, Appellants; Same Respondent v. ROYAL INSURANCE COMPANY, LTD., a Corporation, NATIONAL UNION FIRE INSURANCE COMPANY, OF PITTSBURG, PA., a Corporation, and UNITED STATES FIRE INSURANCE COMPANY, a Corporation, Appellants; Same Respondent v. NATIONAL UNION FIRE INSURANCE COMPANY, a Corporation, and UNITED STATES FIRE INSURANCE COMPANY, a Corporation, Appellants; Same Respondent v. UNITED STATES FIRE INSURANCE COMPANY, a Corporation, Appellant; Same Respondent v. NATIONAL UNION FIRE INSURANCE COMPANY, OF PITTSBURG, PA., a Corporation, Appellant; Same Respondent v. INSURANCE COMPANY OF NORTH AMERICA, a Corporation, Appellant; Same Respondent v. PACIFIC STATES FIRE INSURANCE COMPANY, a Corporation, and L. MCFADDEN, Appellants; Same Respondent v. PACIFIC STATES FIRE INSURANCE COMPANY, a Corporation, Appellant; Same Respondent v. UNION ASSURANCE SOCIETY, LTD., a Corporation, Appellant; Same Respondent v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Corporation, Appellant; Same Respondent v. HARTFORD FIRE INSURANCE COMPANY, OF HARTFORD, CONN., a Corporation, Appellant; Same Respondent v. SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY, OF SPRINGFIELD, MASS., a Corporation, Appellant;

I. R. SMITH, Respondent, v. PACIFIC STATES FIRE INSURANCE COMPANY, Appellant;

I. R. SMITH, Respondent, v. UNITED STATES FIRE INSURANCE COMPANY, Appellant

No. 4465

Supreme Court of Idaho

May 7, 1927

APPEAL AND ERROR-ORDER DENYING CHANGE OF VENUE-REMITTITUR-WITNESSES - TESTIMONY AS TO VALUE AND EXPERIENCE - TRIAL-PROOF OF PREVIOUS FIRES-INSURANCE-MEASURE OF DAMAGES-INSTRUCTIONS-PROOFS OF LOSS-INSURABLE INTEREST-ESTOPPEL.

1. Order denying motion for change of venue was not reviewable on appeal from judgment on the merits, in view of C. S., sec 7152, authorizing direct appeal from such order, and section 7170, specifying matters that may be considered on appeal from judgment.

2. Where manager of insured testified in attempt to explain certain discrepancies in proofs of loss made by him after destruction of insured property, refusal to permit cross-examination relative to destruction by previous fires of property belonging to witness or corporation managed by him for declared purpose of showing qualification to testify concerning values and experience in preparing proofs of loss held a proper exercise of discretion.

3. In action on insurance policies, offer to prove that principal stockholder and manager of insured had had different fires during preceding years, which consumed property in some instances heavily insured, held properly excluded, in absence of statement as to specific facts testimony would establish and nature of evidence by which they expected to establish principal facts, consistent with incendiary origin of previous fires, since it was necessary, not only to prove previous fires, but also that they were of incendiary origin, and pursuant to comprehensive plan.

4. Offer of proof cannot be made in general terms, but must enable court to rule on specific testimony, and must embrace all facts showing admissibility of evidence, and not of conclusions.

5. Where briefs of both parties admit that jury, in authorizing recovery on insurance policies, did not allow credit for payment made by certain companies to mortgagee pursuant to loss payable clause, and amounts paid by each of companies is stated in their brief, proper deduction from judgment rendered against such companies may be made by remittiturs of supreme court.

6. Proper measure of damages for destruction of insured property is determinable by the sum necessary to indemnify insured.

7. Proper measure of damages for destruction of insured building is the cost of a new building of dimensions of the one destroyed, less amount destroyed building had deteriorated by use.

8. For purpose of determining proper measure of damages for destruction of insured store fixtures, household furniture and personal effects, property should be appraised according to actual worth of article to owner, for use in condition in which they were at time of destruction, excluding any fanciful or sentimental consideration.

9. In estimating insured's loss on stock of merchandise having a fair market value, the market value should ordinarily control.

10. Instruction, in action on insurance policies, to effect that actual cash value to which recovery was limited was what it would cost insured in cash to purchase or replace property of like kind or quality, though erroneous, was not prejudicial in view of amounts awarded by jury showing that valuation must have been determined from another instruction authorizing them to consider all conditions and circumstances in determining such value.

11. While a false statement of quantity or value in proofs of loss must be knowingly and wilfully made, with fraudulent intent to avoid a policy, yet misstatement may be so gross as to furnish in itself basis for inference of wilfulness and knowledge of falsity.

12. Where, in action on insurance policies, considerable testimony was introduced bearing on knowledge and good faith of insured in making proofs of loss, jury could not, in determining whether proofs were wilfully or fraudulently made, consider only mistake or discrepancies in proofs, but must necessarily find from all evidence that they were knowingly false in order to avoid policy.

13. Where insurance policy by express terms recognizes insured as agent for other members of household, recovery may be had on policy for loss of such property, notwithstanding he had no insurable interest therein.

14. By insuring property in name of insured, with knowledge that part of it belonged to other members of his household insurers were estopped to deny insurable interest.

15. Insured, as agent for other members of household, was entitled to make proof of loss in his own name by virtue of contract to insure it in his own name.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. M. I. Church, Judge.

Action on insurance policies. Judgment for plaintiff. Modified and Affirmed.

Judgments affirmed. Costs to respondents.

A. E Clark and George Donart, for Appellants.

The proper venue in an action against a fire insurance company is the county where the loss occurred, or the county where the policy-holder instituting such suit resides. A policy-holder is the person holding the policy at the time the loss occurred. (C. S., secs. 4967, 6664; Boyer v. Northern Pacific Ry. Co., 8 Idaho 74, 66 P. 826, 70 L. R. A. 691; Bliss on Code Pleading, sec. 344, p. 49; 31 Cyc. 904; 22 Cyc. 1385; 6 Words and Phrases Judicially Defined (1st series), p. 5440, art. 3096A; Kase v. Hartford Fire Ins. Co., 58 N.J.L. 34, 32 A. 1057; Phillips on Insurance, sec. 108; May on Insurance, sec. 386; Cochburn v. Hawkeye Commercial Men's Assn., 163 Iowa 28, 143 N.W. 1006.)

Evidence of other fires occurring under like circumstances is admissible to show a continuing or comprehensive plan or scheme to defraud insurance companies. (Rafferty v. State, 91 Tenn. 655, 16 S.W. 728; State v. McClar, 81 Ore. 510, 160 P. 130; Hinkle v. State, 174 Ind. 276, 91 N.E. 1090; State v. Briggs, 74 Kan. 377, 10 Ann. Cas. 904, 86 P. 447, 7 L. R. A., N. S., 278; Underhill on Crim. Evidence, sec. 438; People v. Marrin, 205 N.Y. 275, 98 N.E. 474, 43 L. R. A., N. S., 754; People v. Zucker, 154 N.Y. 770, 49 N.E. 1102.)

The amount of plaintiff's loss or damage in an action on a fire insurance policy is limited to the actual cash value of the property destroyed by fire at the time and place of destruction, not what it would cost the insured in cash to purchase or replace property of like kind or quality. ( Mechanics' Ins. Co. v. Hoover Distilling Co., 182 F. 590, 105 C. C. A. 128, 31 L. R. A., N. S., 873; 26 C. J. 352; Palatine Ins. Co. v. Commerce Trust Co., 73 Okla. 236, 175 P. 930; Prussian Nat. Ins. Co. v. Lawrence, 221 F. 931, 137 C. C. A. 501, L. R. A., N. S., 1915E, 489; State Ins. Co. v. Taylor, 14 Colo. 499, 20 Am. St. 281, 24 P. 333; Commonwealth Ins. Co. v. Sennett, Barr & Co., 37 Pa. 205. 78 Am. Dec. 418; Wood on Insurance, sec. 446.)

It is a question of fact for the jury to determine whether or not a large mistake or discrepancy between the sworn statement by the assured as to its loss, and the amount of the loss as shown by the evidence, is sufficient evidence to establish fraud or false swearing. Such mistake or discrepancy, when large, may in itself constitute sufficient evidence to establish fraud or false swearing on the part of the assured. (Fire Association v. Allesina, 49 Ore. 316, 89 P. 960; Rovinsky v. Northern Assur. Co., 100 Me. 112, 60 A. 1025; Sternfeld v. Park Fire Ins. Co., 50 Hun, 262, 2 N.Y.S. 766; Wall v. Howard Ins. Co., 51 Me. 32; Insurance Companies v. Weides, 81 U.S. 375, 20 L.Ed. 894; Spring Garden Ins. Co. v. Amusement Syndicate Co., 178 F. 519, 102 C. C. A. 29; Commercial Ins. Co. v. Friedlander, 156 Ill. 595, 41 N.E. 183; Miller v. Alliance Ins. Co., 7 F. 649; Franklin Ins. Co. v. Culver, 6 Ind. 137; Riley v. Aetna Ins. Co., 80 W.Va. 236, 20 A. L. R. 1172, note, 92 S.E. 417.)

An insured under a fire insurance policy has no insurable interest in the property of his mother-in-law or sister-in-law residing in the same household with him. (32 C J. 1109; Tyree v. Virginia Fire & Marine Ins. Co., 55 W.Va. 63, ...