Fire Ass'n of Philadelphia v. Strayhorn

• Decision Date: 23 April 1919
• Docket Number: (No. 4-2697.)
• Parties: FIRE ASS'N OF PHILADELPHIA v. STRAYHORN.
• Court: Texas Supreme Court

211 S.W. 447

FIRE ASS'N OF PHILADELPHIA v. STRAYHORN.

(No. 4-2697.)

Commission of Appeals of Texas, Section A.

April 23, 1919.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Joe Strayhorn against the Fire Association of Philadelphia. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed (165 S. W. 901), and defendant brings error. Judgment of the Court of Civil Appeals reversed, and cause remanded for new trial on recommendation of the Commission of Appeals.

Crane & Crane, of Dallas, for plaintiff in error.

Beall & Beall, of Sweetwater, and Perkins & Perkins, of Snyder, for defendant in error.

SONFIELD, P. J.

Joe Strayhorn, plaintiff, brought this action against the Fire Association of Philadelphia, defendant, to recover on a fire insurance policy issued by defendant on a gravel roof concrete building in Snyder, the property of plaintiff, the policy of insurance being in the sum of $4,500, alleging that the building was totally destroyed by fire. Defendant denied that the building was a total loss.

There were other pleadings and questions raised with reference thereto, but in the view we take of the case we deem it unnecessary to consider these questions.

The cause was submitted to the jury on special issues, and upon its findings a judgment was entered in favor of plaintiff for the full amount of the policy, with interest thereon from the 19th day of December, 1911, the date of the fire. On appeal the Court of Civil Appeals affirmed the judgment of the district court. 165 S. W. 901.

The building was of concrete, 75 feet front by 100 feet deep. It was constructed about four years before the fire. The evidence established that as a result of the fire the front wall had collapsed and fallen into the street, and that the north wall was in such condition that it could not be used in reconstruction. The interior was burned out. The east and west walls remained standing, but there is a conflict in the evidence as to their condition. Several of plaintiff's witnesses testified that the walls were totally destroyed and could not be utilized in rebuilding; while a witness for defendant, a contractor and builder, testified that these walls for a height of approximately 10 feet could be used as a basis upon which to restore the building to its condition before the fire. These walls originally were 100 feet long and about 21 or 22 feet high.

The court, among other issues, submitted to the jury the following:

"Was the concrete building owned by plaintiff and covered by the policy of insurance, in this case, a total loss by the fire of December 19, 1911?"

As bearing upon this issue, the court instructed the jury as follows:

"You are charged that a building is not considered a total loss by fire, so long as its identity as a building is left and so long as the remnant may be reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury. But it is a total loss, unless the remnant after the fire is of that substantial character that, if the same was restored or repaired, it would be considered the old structure and not a new building."

Defendant excepted to the foregoing paragraph of the charge as incorrectly stating when a building is not a total loss, and erroneously defining a total loss; and requested the following charge:

"In considering question No. 1 of the court's charge, you are instructed that there can be no total loss so long as the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury. Whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such remnant as such basis."

Defendant requested submission of the following special issue:

"Would a reasonably prudent owner, uninsured, desiring such a structure as the concrete building was before the fire, in proceeding to restore it to its original condition utilize any part of either the east or west walls? If so, what portions of either the above, giving the dimensions?"

The court refused both the special charge and the special issue. Defendant assigned error to the court's refusal.

A contract of insurance is one of indemnity. The property owner is to be indemnified against loss of the thing insured. The authorities are in agreement that a policy of insurance on a building has reference to the building as such, and not to the materials composing it. In order, therefore, to constitute a total loss, it is not necessary that all the materials entering into the building be absolutely and physically destroyed. As a result of this conception, or in its application, a rule was formulated and adapted by some of the courts to the effect that a total loss is sustained whenever the building has lost its identity and its specific character. Thus in the leading case of Williams v. Insurance Co., 54 Cal. 442, 35 Am. Rep. 77, the court approved the following charge:

"A total loss does not mean an absolute extinction. The question is, not whether all the parts and materials composing the building are absolutely or physically destroyed, but whether, after the fire, the thing insured still exists as a building. Although you may find the fact that after the fire a large portion of the four walls were left standing, and some of the iron work still attached thereto, still, if you find that the fact is that the building has lost its identity and specific character as a building, you may find that the property was totally destroyed within the meaning of the policy."

In Hamburg-Bremen F. Ins. Co. v. Garlington, 66 Tex. 103, 18 S. W. 337, 59 Am. Rep. 613, the court quoted with approval the above charge, and in Commercial Union Assur. Co. v. Meyer, 9 Tex. Civ. App. 7, 29 S. W. 93, the court approved a charge substantially following that in Williams v. Hartford Insurance Co., supra.

Royal Insurance Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797, involved the admissibility of certain evidence as to the cost of repair and reconstruction of a building, the value of the building after the fire, of the materials uninjured, and of the parts of the building remaining that could be used in reconstruction. In order to a determination of the question, the court, in a notable opinion by Associate Justice Denman, reviewed at length the authorities with reference to total loss, concluding as follows:

"After a careful consideration of the question, we are of opinion that there can be no total loss of a building so long as the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury; that whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before injury, would, in proceeding to restore the building to its original condition, utilize such remnant as such basis."

The above rule has been approved and followed in practically every subsequent case in the various states, involving the question of total loss, limited, however, in its application to those cases where the remnant of the building remaining formed a substantial part of the original building. Providence Washington Insurance Co. v. Morgantown School District, 49 W. Va. 360, 38 S. E. 679; Kinzer v. Insurance Ass'n, 88 Kan. 93, 127 Pac. 762, 43 L. R. A. (N. S.) 121; Northwestern Mut. L. Insurance Co. v. Rochester-German Insurance Co., 85 Minn. 48, 88 N. W. 265, 56 L. R. A. 108; note 56 L. R. A. 788.

In almost every case applying the "identity" and "specific character" rule announced in Williams v. Ins. Co., supra, including the above-cited Texas cases and Murphy v. Am. Cent. Ins. Co., 25 Tex. Civ. App. 241, 54 S. W. 407, relied upon by plaintiff, there was, under the facts, substantially a total destruction of the building and, in those cases where a remnant of the building remained, such remnant was not a substantial part of the building. So that, as observed by the writer of the note in 56 L. R. A. 790, had the rule announced in Royal Ins. Co. v. McIntyre been applied in those cases, the result would have been the same.

The charge herein, in a measure, blends the two rules. Under it, there is no total loss where the identity of the building is preserved and a remnant adapted to reconstruction remains; the test being...