Camden Fire Ins. Ass'n of Camden, N. J. v. Reynolds

• Decision Date: 18 February 1935
• Docket Number: No. 4-3705.,4-3705.
• Citation: 79 S.W.2d 54
• Parties: CAMDEN FIRE INS. ASS'N OF CAMDEN, N. J., et al. v. REYNOLDS.
• Court: Arkansas Supreme Court

79 S.W.2d 54

CAMDEN FIRE INS. ASS'N OF CAMDEN, N. J., et al. v. REYNOLDS.

No. 4-3705.

Supreme Court of Arkansas.

February 18, 1935.

Appeal from Circuit Court, Pope County; A. B. Priddy, Judge.

Actions by R. E. Reynolds and by the National Savings & Loan Association against the Camden Fire Insurance Association of Camden, N. J., and others. The actions were consolidated. From adverse judgments, defendants appeal.

Affirmed.

Danaher & Danaher, of Pine Bluff, and Verne McMillen, of Little Rock, for appellants.

Robert Bailey, of Russellville, for appellee.

BUTLER, Justice.

R. E. Reynolds was the owner of a dwelling house insured by the Camden Fire Insurance Association for $2,000 and by the National Liberty Insurance Company of America in the sum of $500 against loss or damage by fire. The National Savings & Loan Association held a mortgage on this property executed by Reynolds, loss made payable to it as its interest might appear.

On May 19, 1933, a fire occurred in the dwelling. Notice of the fire was given, and after an inspection of the property it was the conclusion of the insurance companies that the building had not been totally destroyed within the meaning of the policy. An offer was made Reynolds to pay him and the loan company a certain amount which the insurance companies estimated was the damage to the property. This offer was refused. On or about June 10, 1933, a carpenter was employed by the insurance companies to estimate the damage and to ascertain the amount required to repair and rebuild the house. The carpenter estimated that it could be restored at that time for $1,267.88. The cost of building material having advanced, this carpenter made a second estimate on or about August 11, 1933, which showed the work could have been done at that time for $1,569.56, and he agreed to restore the building in as good a condition as before the fire for that amount. Another contractor agreed to replace the building for $1,631.02. About September 1, 1933, Reynolds began to tear down what was left of the walls and to remove the débris. At this time one of the contractors offered to begin work restoring the building, and Reynolds refused permission for him to do so.

On June 8, 1933, Reynolds, through his attorney, sent proofs of loss to the insurance companies and was advised, on the 30th of that month, that the proofs were not satisfactory in certain respects; notably, that he had failed to inclose plans and specifications, and that this was required in order that the companies might be able to determine the advisability of replacing or repairing the structure. It appears, however, that the insurance companies had this information for the carpenters first sent by them to inspect the premises made an estimate of the amount necessary to restore the building on June 10, 1933. However, the plans and specifications were forwarded the companies in compliance with the requests. The date of the letter inclosing these plans was August 5, 1933, but it is contended by the companies that it was not mailed until August 8th and received by them on August 10th.

As a result of the disagreement as to the extent of the loss, Reynolds and the loan association filed separate suits against the insurance companies which, by agreement, were consolidated. The trial resulted in a verdict in favor of the plaintiffs for $2,500, whereupon the court rendered judgment in favor of the plaintiffs against the Camden Fire Insurance Company for the sum of $2,000 and against the New Jersey & National Liberty Insurance Company for the sum of $500, adjudging against each of said companies 12 per cent. penalty and attorneys' fees.

On appeal, the appellants contend that the trial court erred in giving certain instructions for the plaintiffs (appellees) and in refusing to give certain instructions requested by them. The principal and real contention for reversal is that the court failed and refused to instruct the jury to return a verdict for the defendants. This instruction was based on the theory that under the proof the evidence failed to show a total loss within the meaning of the policies, and that, therefore, the companies were liable only for an amount equal to the cost of restoration which they had offered to pay.

The policies provided that in the event of loss or damage the companies might repair, rebuild, or replace the property within a reasonable time, on giving notice of its intention to do so, and within thirty days after receipt of proof of loss. This provision is available only where the building has not been totally destroyed because of our statute (section 6147, Crawford & Moses' Dig.) providing that in case of total loss by fire of the property insured the full amount of the policy upon which premiums are charged, collected, or received shall be a liquidated demand.

The trial court's definition of the term "total loss" was as favorable to the appellants as they could ask, and the jury might have found from the evidence that the loss occasioned to the building in question was "total" within the meaning of the law. St. Paul F. & M. Ins. Co. v. Green, 181 Ark. 1096, 29 S.W.(2d) 304; Firemen's Ins. Co. v. Little (Ark., Sept. 24, 1934) 74 S.W.(2d) 777. The evidence on this question is in sharp conflict. Several witnesses, testifying on behalf of the appellants, gave evidence warranting the conclusion that the loss was not total, but only partial, and that the building could have been restored to the same condition it was in when the fire occurred. They testified that the foundation was unimpaired and a portion of the walls standing and usable. Other witnesses who testified for the appellees stated that the foundation was cracked and damaged to such extent that it was unsuitable for the erection of a new building thereon, and that the remaining walls were not reasonably adapted for use in a restored building because of the extent to which they had been damaged by fire and water. The jury resolved the conflict in favor...