City of Aurora v. Firemans' Fund Insurance Co.
| Citation | 165 S.W. 357,180 Mo.App. 263 |
| Parties | CITY OF AURORA, Respondent, v. FIREMANS' FUND INSURANCE COMPANY, Appellant |
| Decision Date | 14 April 1914 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Lawrence County Circuit Court.--Hon. Carr McNatt, Judge.
AFFIRMED.
Judgment affirmed.
J. V McPherson and Fyke & Snyder for appellant.
(1) The jury after hearing all the facts as to the extent of the fire, and the condition of the building immediately after the fire, were competent to pass on the question as to the amount of damage done by the fire. The testimony elicited relative thereto invaded the province of the jury. Taylor v Railroad, 185 Mo. 239, and cases cited. (2) The question in the case was what damage was done to the building by the fire. It devolved upon the plaintiff, in chief, to prove that fact, by competent evidence. Hence, it was error for the court to permit plaintiff in rebuttal to introduce evidence which was necessary to make out his case in chief. Jackson v. Railroad, 118 Mo. 199. (3) Instruction No. 4 given for plaintiff is erroneous. It fixes the amount of the penalty at ten per cent, whereas it could not exceed ten per cent, and under proper instructions, if the evidence warranted it, might be less than ten per cent. Ramsey v Ins. Co., 71 Mo.App. 380; Blackwell v. Ins. Co., 80 Mo.App. 75.
E. J. McNatt and H. H. Bloss for respondent.
(1) A building which, in consequence of a fire, has lost its identity and specific character as a building and has become so far disintregated that it can not properly be designated as a building, though some part of it may remain standing and could be safely used in rebuilding, is a total loss within the meaning of Revised Statutes, 1909, Sec. 7020. Stevens v. Ins. Co., 120 Mo.App. 88; Okeefe v. Ins. Co., 140 Mo. 558. (2) The test of admissibility of expert evidence is not the technical nature of the subject-matter with which the evidence deals, but whether the skill and experience of the witness will aid, and is necessary to aid the jury. Combs v. Const. Co., 205 Mo. 367, 104 S.W. 77; Boettger v. Iron Co., 124 Mo. 104, 27 S.W. 471, 17 Cyc. 71; Merritt v. Tel. Co., 215 Mo. 299. (3) A party can not complain that his adversary was given an instruction, assuming an unproven fact, when his own instruction assumed the proof of the same fact. Peters v. Mfg. Co., 133 Mo.App. 412; Rippetoe v. Railroad, 138 Mo.App. 402; Lind v. Jackson, 139 S.W. 588.
--The plaintiff, city of Aurora, on February 16, 1913, upon payment of a premium of $ 16.20, had issued by defendant company a policy in the sum of $ 1000 insuring against fire its two-story brick building used as a city hall, which policy was to run to February 16, 1916. The petition alleged that on March 31, 1913, while the policy was in force, the insured property was totally destroyed by fire, and that demand for payment of the amount named in the policy was made on the defendant company on June 23, 1913, and payment refused. Judgment is asked for $ 1000 with interest from date of demand together with an amount equal to ten pen cent. of the sum named in the policy for vexatious and unlawful refusal to pay and $ 100 as an attorney's fee.
Defendant, for answer, admitted the issuance of the policy, but averred that the building insured was merely damaged by the fire and not totally destroyed; that after the fire a disagreement arose between plaintiff and defendant as to the amount of the loss, and that defendant requested that said amount be determined by appraisers as provided by the policy, but that plaintiff failed and refused to submit the matter to appraisers, and that by reason thereof plaintiff is not entitled to recover; that the total insurance on said building at the time of the fire was $ 7500, and that if liable, it is only for its pro rata share of the loss or damage, taking into account the whole insurance thereon (which, it may be stated here, was made plain to the jury in an instruction). Following this is a general denial.
The reply denied generally the new matter in the answer.
Nine jurors signed a verdict for plaintiff for $ 1000.
The plaintiff's witnesses told of the fire, stating that it started in the cupola and spread to the roof which burned and fell in; that the bell fell through the second floor and broke in pieces on the ground floor; that firemen with four-inch hose played two streams of water of ninety pounds pressure to the square inch on the burning building for an hour and a half; that when examined the following morning, all the plaster had fallen off the ceiling on the first floor of the building, and a good deal off the walls, and that the wall paper had fallen off in places, and that the lower floor had sagged to some extent since the fire. There is some evidence as to holes in the inner wall, and as to the poor quality of the brick in that wall, and as to cracks in the walls before and after the fire, and as to a water-gauge in one office on the lower floor being unimpaired, it being enclosed in a steel case, and as to the fact that books were put back in the vault in the collector's office until it commenced to leak when new quarters were obtained. Witness Pharris didn't think there was any fire on the lower floor, and the mayor as a witness for plaintiff said there was no fire on the lower story. It was shown that the floor of the second story had holes burned in it, and that part of the joists were burned. Two brickmasons of twenty years' experience testified that the walls were unsafe--that it would not be safe to use the walls in reconstructing the building.
Defendant offered as witnesses an adjuster who examined the building three or four days after the fire and two building contractors residing in a nearby city, one of twenty-six years' experience and the other of twenty-two years' experience, who examined the building on different dates in August, 1913. The adjuster's testimony as to the condition of the inside of the building is not much different from that of plaintiff's witnesses. He could not see any damage to the walls from the fire except on the top where there had been a cornice, stating that only three or four feet of the wall clear around the top should perhaps be taken off and rebuilt. His estimate of what would be the cost of repairing the building was $ 4008.25, which, he said, would put the building in better condition than before, but that he offered $ 4250 which was declined. One of the defendant's experts estimated the cost of repairing at $ 4018, and the other at about the same sum, and each testified to a willingness to take a contract at the sum named. Both testified that the walls were safe and all right except possibly two and a half feet around the top.
There was no evidence offered as to the value of the building at any time. It was constructed about twenty-two years before the date of the fire.
The plaintiff throughout the trial, in the introduction of evidence and in its instructions, proceeded on the theory that there had been a total loss within the meaning of the law, and the jury was instructed that if they believed from the evidence that the building had as a result of the fire lost its identity and specific character as a building, and was so disintegrated that it could not be designated as a building although some parts of it remain standing, then there was a total loss within the meaning of the law, and that they should find for the plaintiff though they believed that some parts of the building were left standing and might safely be used in rebuilding. Two instructions were given based on defendant's theory of what is "total loss." The jury was told in plaintiff's instruction that if they believed there was a total loss, the policy provision as to arbitration was ineffective. The issue of total loss was thus sharply drawn.
The only issue below is the principal issue here. It has now assumed the form of a contention that "there was no substantial evidence to warrant the court in submitting to the jury the question as to whether or not the building was wholly destroyed; that is, whether it had lost its identity and specific character as a building," and that the evidence clearly shows that it was not wholly destroyed. Appellant, however, makes this contention after attempting to have us rule that much of the testimony of plaintiff's witnesses was incompetent, and doubtless presses the contention on the theory that we will hold that that testimony should be stricken from the record. Hence, in order that we may pass upon this principal contention, we must first consider those objections which appellant makes to the testimony, which, if ruled out, would indeed leave plaintiff with little support.
It is claimed that plaintiff's witnesses Pharris and Davis were not qualified to testify as experts. Pharris testified he was a practical mason of twenty years' experience, and that he built brick walls, and that he saw the building in question the morning after the fire, and had examined it twice since, and that he was capable of judging whether a brick wall is in a safe or unsafe condition. Defendant did not object at any time that he was not qualified as an expert. Witness Davis testified he had had twenty years' experience building brick walls and that he had examined the walls since the fire, the only objection being that "he has not shown himself qualified to pass on this question" (as to the strength of the walls) "because it is not a matter of expert testimony." However, we hold that these witnesses were properly qualified as experts to give their opinions as to the strength of the walls after the fire. [See, Turner v. Haar, 114 Mo. 335, 21 S.W. 737.]
The contention is...
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