Franklin Fire Ins. Co. v. Brewer

• Decision Date: 01 April 1935
• Docket Number: 31500
• Court: Mississippi Supreme Court
• Parties: FRANKLIN FIRE INS. CO. et al. v. BREWER

159 So. 545

160 So. 387, 173 Miss. 317

FRANKLIN FIRE INS. CO. et al. v. BREWER

No. 31500

Supreme Court of Mississippi

April 1, 1935

Division A

February 18, 1935

APPEAL from the circuit court of Leflore county HON. S. F. DAVIS Judge.

Action by W. L. Brewer against the Franklin Fire Insurance Company and another. From judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

On suggestion of error. Suggestion of error overruled.

Reversed and remanded.

Watkins & Eager, of Jackson, and H. T. Odom, of Greenwood, for appellants.

Appellants' first and second special pleas constituted a good and valid defense to appellee's declaration and learned trial court erred in (a) sustaining appellee's demurrers thereto, (b) in sustaining appellee's motion to strike appellants' notice under the general issue, and (c) in sustaining appellee's objection to the introduction of the appraisal agreement in evidence.

Every presumption is in favor of the validity of the appraisal and award.

26 C J. 424; Aetna Ins. Co. v. Cowan, 111 Miss. 453, 71 So. 746; Scottish Union & National Ins. Co. v Skaggs, 114 Miss. 618, 75 So. 437; Section 99, Mississippi Code of 1930, Arbitration and Award; McClendon v. Stewart, 133 Miss. 253, 258, 97 So. 547; Stout v. Garrard & Co., 128 Miss. 418, 91 So. 33.

The valued policy statute, section 5183, Code of 1930, with respect to a total loss has no application since the demurrer admits the allegation of the special plea that the loss was partial and a substantial, material and valuable part of the insured property remained after the fire.

Notice to appellee of the meeting of the appraisers and the ascertainment of the loss neither required by nor essential to the validity of the appraisal agreement and award thereon.

Atkinson v. Whitney et al., 67 Miss. 655, 7 So. 644; American Steel Co. v. German American Fire Ins. Co., 187 F. 730; Norton v. Gale, 95, Ill. 533, 35 Am. Rep. 173; Hanley et al. v. Aetna Ins. Co., 215 Mass. 425, 102 N.E. 641, 34 Ann. Cas. 53.

The appraisal agreement and award thereon applies only to the ascertainment of the sound value and amount of loss or damage, and has no reference to the question of ultimate liability under the policy contract.

Riverside Development Co. v. Hartford Fire Ins. Co., 105 Miss. 184, 62 So. 169; Hamilton v. L. L. & G. Ins. Co., 34 L.Ed. 419, 136 U.S. 242; 26. C. J. 425, Effect of Award; American Cent. Ins. Co. v. Bass, 90 Tex. 380, 38 S.W. 1119; Smith v. Herd, 110 Ky. 56, 60 S.W. 841, 1121, 22 Ky. L. 1596; Young v. Pennsylvania Fire Ins. Co., 269 Mo. 1, 187 S.W. 856; Security Printing Co. v. Westchester Fire Ins. Co., 221 S.W. 430; Phoenix Ins. Co. v. Carnahan et al., 58 N.E. 805; Itasca Paper Co. v. Niagara Fire Ins. Co., 175 Minn. 73, 220 N.W. 425; Harrington v. Agricultural Ins. Co., 229 N.W. 792, 68 A.L.R. 1340.

Appellee refused to accept the amount of the appraisers' award; the special plea alleged willingness and ability to comply with said award and the premature demand, since appellee's suit was filed less than sixty days after the estimate of damage by the appraisers, contrary to the policy provision that in no event shall the loss be payable until sixty days after such ascertainment.

26 C. J., par. 580, page 433; O'Connell v. American Fire Ins. Co., 189 F. 1018; Levin v. Northwestern Nat. Ins. Co., 146 F. 76; Robertson v. Scottish Union, etc., Ins. Co., 68 F. 173; Georgia Home Ins. Co. v. Kline, 114 Ala. 366, 21 So. 958; Garrebrant v. Continental Ins. Co., 75 N.J.L. 577, 67 A. 90, 12 L.R.A. (N.S.) 443; Kaplan v. Niagara Fire Ins. Co., 73 N. J. L. 780, 65 A. 188; Philadelphia Fire Assn. v. Allesina, 45 Ore. 154, 77 P. 123; Early v. Providence, etc., Ins. Co., 31 R. I. 225, 76 A. 753, 140 Am. St. Rep. 750; Billmyer v. Hamburg-Bremen Fire Ins. Co., 57 W.Va. 42, 49 S.E. 901; Dixie Fire Ins. Co. v. American Confectionery Co., 104 Tenn. 247, 136 S.W. 915, 34 L.R.A. (N.S.) 910; Sullivan v. Traders Ins. Co.) 169 N.Y. 213, 62 N.E. 146; Patriotic Order, Sons of America Hall Assn. v. Hartford Fire Ins. Co., 305 Pa. 107, 157 A. 259; Scottish Union & National Ins. Co. v. Skaggs, 114 Miss. 618, 75 So. 437; Georgia Home Ins. Co. v. Stein, etc., 72 Miss. 743, 949; Aetna Ins. Co. v. Cowan, 111 Miss. 453, 71 So. 746; 26 C. J., par. 577, page 432, Arbitration or Appraisal by Agreement; Insurance Company of N. A. v. Kempner, 215 Ark. 215, 200 S.W. 986; Insurance Company v. Kennington, 71 So. 378; Mississippi Cotton Oil Co. v. Buster, 84 Miss. 91; Jones v. Harris, 58 Miss. 293, 298; American Cent. Ins. Co. v. Bass, 90 Tex. 380, 38 S.W. 1119; Commercial Union Assur. Co., Ltd., v. Dalzell, 210 F. 605; Phoenix Ins. Co. v. Carnahan et al., 58 N.E. 805; Pennsylvania Fire Ins. Co. v. Drackett, 57 N.E. 962; O'Keefe v. L. L. & G. Ins. Co., 140 Mo. 558, 39 L.R.A. 819; Aetna Ins. Co. v. Murray, 67 F.2d 289, 291.

The learned trial court erred in sustaining appellee's motion to permit the jury to view the damaged dwelling house and in overruling appellants' objection to such request.

National Box Co. v. Bradley, 154 So. 724, 725, 157 So. 91.

The learned trial court erred (a) in admitting over objection the evidence of witness Spence as to the original cost of the house, (b) in admitting the testimony of contractor Howell as to the property being a total loss, based on his inspection the day before the trial, which was approximately fourteen months after the loss; (c) in admitting the testimony of the dentist Smith to the effect that "it looked like, a complete wreck to me," based on his inspection the day before the trial.

Smith v. Mass. Mutual Life Ins. Co., 156 So. 498; Royal Ins. Co. v. Ward, 68 S.W.2d 9.

The judgment to the extent that it includes interest is contrary to the law and evidence.

Fireman's Fund Ins. Co. v. Haley, 129 Miss. 525, 535, 92 So. 635; New York Life Ins. Co. v. Brame, 112 Miss. 828, 854, 73 So. 806; Equitable Life Assur. Soc. v. Brame, 112 Miss. 859, 860, 73 So. 812; National Union Fire Ins. Co. v. Cone, 80 Fla. 265, 85 So. 913; Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648; Zimmerman v. Southern Surety Co., 241 S.W. 95; Columbia Real Estate & Trust Co. v. Royal Exchange Assur., 132 S.C. 427, 128 S.E. 865; Fire Assn. of Philadelphia v. Strayhorn, 211 S.W. 447, 165 S.W. 901; Columbia National Fire Ins. Co. v. Dixie Coop. Mail Order House, 261 S.W. 174, 276 S.W. 219.

Prior introduction of inadmissible evidence estops the party offering it from objecting to the admission of similar evidence on the part of his opponent.

Thayer Export Lbr. Co. v. Naylor, 100 Miss. 841, 848, 57 So. 227.

Gardner, Denman & Gardner, of Greenwood, for appellee.

It will be noted that section 5183, Code of 1930, specifically says that the insurance company "shall not be permitted to deny that the property insured was worth, at the time of the issuing the policy, the full value upon which the insurance is calculated, and the measure of damage shall be the amount for which the property was insured." This section of our Code, as this court knows, has been frequently construed by this court and its validity sustained.

Assurance Co. v. Phelps, 77 Miss. 625; Insurance Company v. Shlenker, 80 Miss. 667; Home Ins. Co. v. Barron, 91 Miss. 722; Palatine. Ins. Co. v. Nunn, 99 Miss. 493; Shivers v. Farmers Mutual Ins. Co., 99 Miss. 744; Miss. Fire Ins. Co. v. Planters Bank, 138 Miss. 275; Hartford Fire Ins. Co. v. Clark, 154 Miss. 418.

Any stipulation in a contract of insurance made in this state which conflicts with the duty that the company is under by virtue of section 2592, Code of 1906 (which is now section 5183, Code of 1930) to pay the full amount of the policy for which the property has been insured and for which the premiums have been paid, is a nullity.

Insurance Company v. Barron, 91 Miss. 727; Germaine Fire Ins. Co. v. Francis, 52 Miss. 457.

Where there has been view or inspection of place or premises by jury, Supreme Court will not reverse on evidence, if there be any substantial testimony, delivered by sworn witnesses in support of verdict.

National Box Co. v. Bradley, 157 S.W. 91.

We submit that the testimony in this case overwhelmingly shows, as we have said, that there was a total loss, and, therefore, the verdict of the jury is correct.

One of the leading cases in support of our contention that the testimony in this case shows that this building was a total loss is the decision in the case of Scottish Union & National Ins. Co. v. Warren Gee Lbr. Co., 118 Miss. 740. This case is sustained and supported by 26 C. J., page 349.

The cases all agree that an insurance of a building is upon the building and not on the materials which compose it, and that the total destruction of a building within the meaning of an insurance policy means its complete destruction as a building, but not necessarily the absolute extinction of all its materials, or even that no part of it can be left standing.

14 R. C. L., page 1302, sec. 476.

A total loss, within the meaning of a statute making an insurer liable for the full estimated value of the insured building as fixed in the face of the policy, in case of such loss, is such injury or damage to the building as to destroy its identity and specific character as a building, or such injury or damage to all its parts and materials as to render them unsafe or without value as they remain after the fire for the purpose of reconstructing the building substantially as it existed before it was burned.

Thuringia Ins. Co. v. Malott, 55 L.R.A. 277, 111 Ky. 917, 64 S.W. 991; 5 L.R.A. Digest (N.S.), page 5665, sec. 704.

It is our contention that the testimony shows a total loss, and, therefore, the verdict of the jury is correct.

When a party is entitled to interest, but the...