Franklin Fire Ins. Co. v. Brewer
| Decision Date | 18 February 1935 |
| Docket Number | 31500 |
| Citation | 173 Miss. 317,159 So. 545 |
| Court | Mississippi Supreme Court |
| Parties | Franklin Fire Ins. Co. v. Brewer. |
(Division A.)
Appraisers' award made pursuant to agreement in fire policy held not to bar action for recovery on policy.
Insurer who pleaded that appraisers' award barred action on fire policy could not later claim suit was prematurely brought and should be abated, since by pleading in bar insurer waived matters in abatement (Code 1930, sections 532, 533).
Statute providing that where property is totally destroyed insurer could not: deny that property at time of issuing policy was worth full value upon which insurance was calculated, held not to prohibit policy agreements for appraisement of a partial loss (Code 1930, section 5183).
Provision for appointment of appraisers to determine extent of loss held supported by adequate consideration where agreement was written in fire policy.
Failure to notify insured of appraisers' intention to meet and determine loss under fire policy held not to invalidate award, where such notice was not required in policy or arbitration agreement.
In action on fire policy, that court permitted jury to view building over objection that it had been a year since fire occurred and that insured's witnesses had testified that building had deteriorated held not error, in absence of evidence of a material change in the building since the fire.
In action on fire policy, testimony of witnesses, who examined building a short time before trial but over a year since fire, as to whether loss was total or partial, held admissible, in absence of evidence showing a material change in building since the fire.
Instructions that building was totally destroyed within fire policy if it was unfit for the use or purpose for which it was built or used, was useless as a dwelling, had lost its identity as building, although some walls remained standing, or was useless to insured, which failed to charge that if substantial parts of building remained in place above foundation, destruction was not total, held erroneous.
To prevent building from being "totally destroyed" within fire policy, substantial parts must remain in place above the foundation, since if only foundation remain building is "totally destroyed," although some parts of building remain in such condition as to be of value for salvage.
ON SUGGESTION OF ERROR. (Division A.) April 1, 1935. [160 So. 387. No. 31500.
INSURANCE. In action on fire policy, admission of testimony as to cost of construction of house insured when new held error.
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.
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. West-chester 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. Aliesina, 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...
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