Firemen's Ins. Co. v. Little

Decision Date24 September 1934
Docket NumberNo. 4-3478.,4-3478.
Citation74 S.W.2d 777
PartiesFIREMEN'S INS. CO. et al. v. LITTLE et al.
CourtArkansas Supreme Court

Verne McMillen, of Little Rock, for appellants.

O. H. Sumpter, of Hot Springs, for appellees.

MEHAFFY, Justice.

The appellee Annie E. Little was the owner of a frame hotel or rooming house located at 201 Prospect avenue in the city of Hot Springs, Ark., and was the owner at the time the policies hereinafter mentioned were issued, and at the time of the fire. Policies were issued covering said property as follows:

Firemen's Insurance Company, $1,000.

National Fire Insurance Company, $1,000.

City of New York Insurance Company, $2,000.

Georgia Fire Underwriters (two policies), $3,500.

North British & Mercantile Insurance Company, $2,500.

The appellee executed her promissory note in the sum of $25,000 payable to appellee Ed B. Mooney, due nine months after date, and to secure the payment of said note executed a deed of trust conveying the property on which the insured building was located to Claude E. Marsh, trustee. Mooney borrowed $20,000 from the National Realty Company, and pledged the $25,000 note mentioned as security for the payment of his note. A mortgage clause was attached to each of the policies, providing the loss, if any, should be payable to Ed B. Mooney, mortgagee, as his interests might appear.

Separate suits were filed by appellee Annie E. Little, against each of the above-named insurance companies, and the National Realty Company and Ed B. Mooney were also made defendants. It was alleged in each complaint that the building was totally destroyed by fire, and appellee prayed judgment for the full amount mentioned in each policy. She also alleged that the defendants National Realty Company and Ed B. Mooney falsely and without right claimed a mortgage lien on the property, and also claimed the debt due under the policies.

The National Realty Company and Ed B. Mooney filed answers and cross-complaints, asking that the causes be transferred to equity, and the mortgage be foreclosed. The appellee Annie E. Little filed answer to the cross-complaints, and alleged that the loan made by Ed B. Mooney to her was usurious and void, and prayed that the cross-complaints be dismissed.

The insurance companies answered, admitting that the policies of fire insurance were in force, but denying that the building was totally destroyed by fire. They admitted the property was damaged by fire, but alleged that the policies provided that the insurance company should not be liable for more than it would cost the insured to repair or replace the same with material of like kind and quality at the time of the loss, and that it would have cost the insured not exceeding $5,000 to make the repairs. Each of the appellants offered to confess judgment for its proportion of the damage upon the basis of $5,000 total damage. The cases were transferred to equity and consolidated for the purpose of trial. By agreement the consolidated cases were tried as to the liability of the insurance companies, and the question of the liability of appellee Annie E. Little, under her note and mortgage to Ed B. Mooney, was reserved for determination of the court. The only question before this court is the amount of liability of the insurance companies under their policies.

The chancery court found that there was a total loss, and that the value of any salvage was less than the cost of removing same, and entered a decree against each of the insurance companies for the full amount of the policies, together with attorney's fee of 15 per cent. and a penalty of 12 per cent. The case is here on appeal by the insurance companies.

J. C. Copeman, a witness for the appellee, testified that he was a construction superintendent, and had just completed the Army and Navy Hospital; that he was called upon to make an examination of the property at 201 Prospect avenue, owned by Mrs. Little, and made a report of his investigation to Mr. Little. Witness testified that upon a thorough inspection of the property and what there was still remaining of the building, in his opinion there was nothing left that could be used in the reconstruction of any building at all; that if any one would take the property over now it would cost them between $400 and $500 to take the débris off in order to get ready to put up a new building on the site; that it was his opinion that the building, as a building, was a total loss. He did not make an estimate to rebuild the building. He made the examination on September 1, 1933. He examined the foundation, and the foundation was bad and crumbly through the heat that had been in the building. He did not believe it could be used; it would have to be torn out if any structure of any kind was built.

Henry P. O'Hagan, a witness for appellee, testified in substance that his profession was supervising engineer for the War Department, and he had been connected with the work in Hot Springs in the construction of the New Army and Navy Hospital, the nurses' quarters, known as the annex, and two sets of double NCO quarters. The last two were built by himself without a contractor; he did the purchasing and hiring. He made an inspection of the property known as 201 Prospect avenue for Mrs. Little; that the building as it now stands is, in his opinion, of no value; the owner might salvage some firewood, but doubted if any contractor would offer any money for the material now in the building; did not think that any possible salvage would be worth what it would cost to take it down and remove it; believed that the owner would have to pay to have the property cleaned up. In his opinion the property is a total loss. He made the examination of the property about September 1, 1933.

G. Solberg, a witness for appellees, testified in substance as follows: That his business was general superintendent, building supervisor, and he had been recently engaged in construction work in Hot Springs; that he is supervisor of the new nurses' quarters, Army and Navy Hospital; that he inspected the property at 201 Prospect avenue and found, in his estimation, the whole thing a complete loss; there would not be any way to get anything out of the salvage on any of the material. It would not even pay to strip the thing and take it down for the salvage of the material. It is a complete loss in his estimation. He made the examination about four weeks ago.

Captain E. M. George, a witness for appellees, testified in substance that he was captain of the Quartermaster Corps, United States Army, and that Solberg is now employed as general superintendent for the H. B. Ryan Company of Chicago, Ill., and in that capacity is looking after the building of the $160,000 nurses' quarters, under witness' supervision. He considers Solberg a competent judge of construction material, and of materials that go into building. H. P. O'Hagan is superintendent of construction and civil engineer, and has been in the employ of the War Department for thirty years under the direct supervision of witness for the last six years. Witness considers him a competent man in his business, and a judge of construction material and buildings. J. C. Copeman is construction superintendent and has been for the past eighteen years. In all witness' experience he is the best building superintendent witness has ever had. Mr. O'Hagan is employed by the War Department, and Mr. Solberg and Mr. Copeman are employed by general contractors. They have to do with government buildings and commercial buildings. Witness is construction quartermaster. He inspected the building at 201 Prospect avenue and considers the building a total loss and a menace. The inspection was made about a month ago.

O. M. Harrison, a witness for appellants, testified in substance that he was a building contractor, had been in that business for eighteen or twenty years, and had built numbers of buildings in Hot Springs, one right across the street on Prospect avenue, for Captain Ricks; made an estimate of the damage to the building at 201 Prospect, August 26, 1932. The building was not destroyed by fire, but was damaged. Witness went over the building carefully, and his estimate of the cost of repairing the building and replacing all the damaged parts at that time was $6,164.40. He was at that time ready and willing to take a contract to make the repairs with the exception of the heating plant. The foundation of the building was not damaged in any way by the fire. His estimate included every part of the building that was damaged in any way, with the exception of the furnace. Several rooms in the building were not damaged by the fire, the canvas and paper still on them. If witness owned the building and wanted to build one like the building was before the fire, he would use the part remaining as a basis for restoring the building.

W. W. Brown, a witness for appellants, testified that he lived in Little Rock and was a building contractor; had been actively engaged in that business for thirty years; made an estimate on the building at 201 Prospect avenue on November 20, 1932, and estimated that to repair all the damage caused by the fire the cost would be $5,525.87. Witness proposed to make the repairs for that amount. His estimate consisted of removing the débris, hauling it from the premises, a little brickwork, topping one flue, sufficient lumber to replace that which was damaged or destroyed, and mill work, which consists of doors and windows, replacing all that were damaged, a composition roof, repairs to plumbing, and...

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3 cases
  • Firemen's Ins. Co. v. Little
    • United States
    • Arkansas Supreme Court
    • 24 Septiembre 1934
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    • United States
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    ...the question had been presented to us in the first instance. Lee v. Crittenden County, 216 Ark. 480, 226 S.W.2d 79. Firemen's Ins. Co. v. Little, 189 Ark. 640, 74 S.W.2d 777. The same principles apply to market value witnesses. Lazenby v. Arkansas State Highway Commission, 231 Ark. 601, 331......
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    ...Insurance Co., D.C., 164 F.Supp. 654; Fadanelli v. National Security Fire Ins. Co., 113 Neb. 830, 205 N.W. 642; Firemen's Ins. Co. v. Little, 189 Ark. 640, 74 S.W.2d 777; Phoenix Ins. Co. v. Levy, 12 Tex.Civ.App. 95, 33 S.W. 992; Horn v. Atlas Assur. Soc., 241 Ky. 226, 43 S.W.2d 675; 29A Am......

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