Dinneen v. American Insurance Company

• Decision Date: 03 April 1915
• Docket Number: 17922
• Parties: JOHN J. DINNEEN, ADMINISTRATOR, APPELLANT, v. AMERICAN INSURANCE COMPANY, APPELLEE. JOHN J. DINNEEN, ADMINISTRATOR, APPELLANT, v. DELAWARE INSURANCE COMPANY, APPELLEE
• Court: Nebraska Supreme Court

152 N.W. 307

98 Neb. 97

JOHN J. DINNEEN, ADMINISTRATOR, APPELLANT, v. AMERICAN INSURANCE COMPANY, APPELLEE. JOHN J. DINNEEN, ADMINISTRATOR, APPELLANT, v. DELAWARE INSURANCE COMPANY, APPELLEE

No. 17922

Supreme Court of Nebraska

April 3, 1915

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.

REVERSED.

James B. Kelkenney and John E. Quinn, for appellant.

Baldrige Keller & Keller, contra.

BARNES J. LETTON, J., concurring. FAWCETT, J., dissenting, ROSE, J., joins in dissent.

OPINION

BARNES, J.

John Kennelly brought two suits in the district court for Douglas county on separate fire insurance policies, but died before the cases were tried. The actions were revived in the name of John J. Dinneen, administrator, and were subsequently consolidated.

It appears that each of the two defendants insured Kennelly against loss by fire to the extent of $ 1,500 on a three-story frame building situated within the fire limits of the city of Omaha. The insured property was damaged by fire on March 19, 1908. The city of Omaha, pursuant to an ordinance, prevented the repair of the building, and the owner was required to demolish it. Out of what remained after the fire, insured realized $ 210. Allowing credit for that sum, he demanded from each of the defendants $ 1,395. Before the loss occurred the value of the building was $ 5,000. The fire damaged the insured property to the extent of $ 1,200. Each of the policies contained the following provisions: "This company shall not be liable for loss caused * * * by order of any civil authority." "This company shall not be liable * * * for loss * * * beyond the actual value destroyed by fire, for loss occasioned by ordinance or law regulating construction or repair of buildings." In giving effect to these provisions of the policy, the district court rendered judgment against each of the defendants for $ 640.81, and from those judgments the plaintiff has appealed, claiming that, within the meaning of the contract of insurance and the valued policy act, the property was wholly destroyed, and that he was entitled to recover as for a total loss. Rev. St. 1913, sec. 3210.

Plaintiff contends that, where the property insured is realty, and is wholly destroyed without criminal fault on the part of the owner, the amount of the insurance written in the policy should be taken conclusively to be the true value of the property insured and the true amount and measure of damages. He argues that the statute eliminates from the insurance contract in controversy the conditions of the policies relating to loss occasioned by city ordinances regulating the construction or repair of buildings. It is also argued that existing laws and ordinances are parts of the insurance policies; that the building was damaged by fire beyond repair; and that as a result the insured property was totally destroyed. There is a stipulation in the record which recites, among other things, the following:

"That on the 19th day of March, 1908, while said contracts of insurance were in full force and effect, said building was burned and damaged by fire to such an extent as to require that it should be repaired before being fit for habitation; that said building was located within the fire limits of the city of Omaha; that Charles H. Withnell, building inspector of the city of Omaha, refused to grant plaintiff's application for a permit to repair said building, because, by reason of said fire, he claimed said building had depreciated in value to an extent greater than 50 per cent. of its original value, said building being a frame structure and within the fire limits of the city of Omaha; that the said building inspector recommended to the city council of the city of Omaha that said building be torn down, and on the 17th day of July, 1908, upon a hearing on said recommendation, said building was condemned and ordered torn down by said city council because, in its opinion, said building was in bad condition and depreciated in value to an extent greater than 50 per cent. of value of similar buildings above foundation by reason of said fire; that plaintiff obeyed the order of the council, and notified defendants of this fact; that plaintiff notified defendants of the refusal of the building inspector to grant a permit to repair said building, and of the condemnation proceedings of the city council."

It was further stipulated, in substance, that the city ordinances pertaining to buildings within fire limits, as published in Thomas' Revised Ordinances 1905, were in effect at the time of the issuance of the policies herein, at the time of the said fire, at the time of the building inspector's refusal to grant said permit to repair and the condemnation proceedings of the city council. It is a well-established rule that a policy insuring against loss or damages by fire covers loss occasioned by a law prohibiting the repair of a building partially destroyed by fire. Hewins v. London Assurance Corporation, 184 Mass. 177, 68 N.E. 62; Brady v. Northwestern Ins. Co., 11 Mich. 425; Larkin v. Glens Falls Ins. Co., 80 Minn. 527, 83 N.W. 409; Monteleone v. Royal Ins. Co., 47 La. Ann. 1563, 56 L. R. A. 784, 18 So. 472; Hamburg-Bremen Fire Ins. Co. v. Garlington, 66 Tex. 103, 18 S.W. 337; Palatine Ins. Co. v. Nunn, 99 Miss. 493, 55 So. 44.

In Larkin v. Glens Falls Ins. Co., supra, it was said: " The parties are presumed to know of the ordinances. They directly and materially affect their rights in case of a loss under the policy, and should govern and control in the adjustment and settlement of such loss. 4 Joyce, Insurance, sec. 3170."

In Hamburg-Bremen Fire Ins. Co. v. Garlington, supra, it was held: "That the parties having contracted in view of the ordinance, the fire must be deemed the proximate cause of the loss, and the loss total."

In Palatine Ins. Co. v. Nunn, 55 So. 44 (99 Miss. 493), it was said: " A building insured against fire is a 'total loss' where, though only partly burned, it is rendered unfit for the purpose for which it was constructed, and there is an ordinance or law prohibiting reconstruction."

In the note to Monteleone v. Royal Ins. Co., supra, as reported in 56 L.R.A. 784, 793, it is said: " Whenever, by reason of the existence of local ordinances or regulations, it is rendered impossible to repair a partially destroyed building, the insured is liable as for a total loss."

Such is the rule in this state. German Ins. Co. v. Eddy, 36 Neb. 461, 54 N.W. 856; Home Fire Ins. Co. v. Bean, 42 Neb. 537, 60 N.W. 907; Insurance Company of North America v. Bachler, 44 Neb. 549, 62 N.W. 911. In the two cases last cited it was said: " Where real property is wholly destroyed by fire, any provision of a policy of insurance covering such property which in any manner attempts to limit the amount of the loss to less than the sum written in the policy is in conflict with the statutory rule, invalid, and will not be enforced."

The principal question in dispute in this case is whether an insurance company may embody provisions in the policy which provide that it shall not be liable for loss occurring by reason of any ordinance regulating the construction or repair of buildings. This precise point was considered and determined in New Orleans Real Estate Mortgage & Securities Co. v. Teutonia Ins. Co., 128 La. 45, 54 So. 466, and in Palatine Ins. Co. v. Nunn, supra, and it was held that such provisions were invalid under a valued policy law. Considering the effect of our former decisions as to what constitutes a total loss, and also giving the valued policy law the weight and effect it seems to us that the legislature intended it to have, we must hold that the conditions of the policy limiting the amount of loss are invalid, and that the building was a total loss to the insured. The Massachusetts case (Hewins v. London Assurance Corporation, supra), relied upon is not based upon a valued policy law, and is not applicable.

It appears that a jury was impaneled to try the case, and at the conclusion of the testimony the plaintiff requested the court to direct a verdict in his favor for...