O'Keefe v. Liverpool, London & Globe Insurance Co.
| Decision Date | 06 July 1897 |
| Parties | O'Keefe v. Liverpool, London & Globe Insurance Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court.
Affirmed.
Fyke Yates & Fyke for appellant.
(1) The evidence is uncontradicted that defendant demanded of plaintiff that he furnish to defendant in accordance with the plain terms of the contract, verified plans and specifications of the property damaged, and that plaintiff refused so to do. This requirement of the contract is reasonable, valid and binding. Arnold v. Ins. Co., 55 Mo.App. 149; Fawcett v. Ins. Co., 27 Up. Can. Q B. 225. (2) The evidence clearly shows without contradiction that the property insured was not a total loss; such being the case, it was at plaintiff's option under section 5899, Revised Statutes 1889, to have the property repaired to the extent of such damage or to have defendant pay him a sum of money equal to the damage done to the property. (3) The property not having been totally lost, and a difference having arisen between plaintiff and defendant as to the amount of damage, the defendant had the right under the plain terms of the contract to have the amount of damage fixed by appraisers. This it requested and the plaintiff refused. Ins. Co. v. Clancy, 71 Tex. 5; Old Sauceleto Land Co. v. Ins. Co., 66 Cal. 253; Gauche v. Ins Co., 10 F. 347; Hamilton v. Ins. Co., 136 U.S. 242. (4) Plaintiff's first instruction is erroneous because misleading and not a proper definition of the term "total loss." Ins. Co. v. McIntyre, 37 S.W. 1068; Ampleman v. Ins. Co., 35 Mo.App. 308; Ampleman v. Ins. Co., Id. 317. The instruction ignores the undisputed fact that the foundation, lower joists and floor were intact -- not damaged by the fire, and could have been safely and properly used in restoring the property. The property insured was "his two story and foundation brick, gravel roof building, etc." The foundation was a part of the property insured and formed an integral part of it, necessary to its construction. Truesdell et al. v. Gay et al., 13 Gray, 313; 1 Bouvier, Law Dictionary, p. 195.
Wallace & Wallace for respondent.
(1) The issue on the question of total loss was one for the jury, and that issue was determined in favor of plaintiff. The instructions upon which this issue was submitted to the jury were in accordance with the law as declared in all the cases. Ins. Co. v. Eddy, 36 Neb. 461; Ins. Co. v. Bachler, 44 Neb. 549; Ins. Co. v. Garlington, 66 Tex. 103; Havens v. Ins. Co., 123 Mo. 403; Barnard v. Ins. Co., 38 Mo.App. 106; Huck v. Ins. Co., 127 Mass. 306; Brady v. Ins. Co., 11 Mich. 445; Nave v. Ins. Co., 37 Mo. 430. (2) The defendant was entitled, under the valued policy law, to require the plans and specifications only in case of a partial loss. In case of a total loss there is but one measure of damages, and that is the amount specified in the policy. R. S. 1889, sec. 5897; R. S. 1879, sec. 6009; Montgomery v. Ins. Co., 47 La. Ann. 1563; Ins. Co. v. Levy, 33 S.W. 992; Roe v. Ins. Co., 149 Pa. St. 94; Ins. Co. v. Schollenberger, 44 Pa. St. 259; Ins. Co. v. Dougherty, 102 Pa. St. 568; 2 May on Insurance [3 Ed.], sec. 465.
This is an action upon a policy of insurance issued by the defendant to the plaintiff on the fifteenth day of May, 1894, insuring plaintiff for one year against loss or damage by fire, to an amount not exceeding $ 3,000, to his two story and foundation brick, gravel roof building, with its additions, porches, steam, gas, and water pipes, plumbers' work and fixtures, steam heating apparatus and connections and piping, stone and prismatic sidewalks adjoining, plate glass, skylights, and all permanent improvements therein.
The policy contained this provision:
On June 3, 1894, a fire occurred by which plaintiff claimed the building was wholly destroyed in contemplation of the statute of this State, and defendant claimed that there was only a partial loss and demanded an arbitration.
The great burden of the testimony was to the effect that the front which consisted of iron pillars and brick superstructure was rendered useless in the condition in which it was left. The pillars were warped and the wall above them sprung out of plumb. The side walls of the lower story were so badly burned, the architects and carpenters testified, that the building could not be repaired; that the old walls would have to be taken down and the building rebuilt from the foundation up. It appeared, however, that a portion of one of the walls in the second story was not ruined by the fire and the effort of defendant was to show that this wall could be shoved up and the burnt portion in the first story taken out and rebuilt, but the architects and builders testified this would be much more costly than taking down the whole of the walls and building them anew, and even if done would not be as good as it was before the fire. The joists were burnt and the roof and window sills destroyed.
The main contention is based upon the evidence that so far as the witnesses could see the foundation was not hurt much, if any. Two builders testified for defendant as to their estimates for rebuilding the house. One, Mr. Kelley, testified it could be repaired and replaced for $ 1,738.45; the other, Mr. Hucke, estimated it at $ 1,688.50, but neither testified it could be done without taking down all the old walls. Plaintiff offered testimony of builders, also, who estimated the loss, one at $ 3,419.50, the other at $ 3,752.
The other defense set up in the defendant's answer -- the failure of the plaintiff to furnish the defendant with plans and specifications of the building -- grows out of the correspondence between the parties. The company wrote Mr. O'Keefe, under date of June 12, demanding an adjustment of the damages by appraisers. Mr. O'Keefe answered this under date of June 14, informing the company that there had been a total destruction of the building as such, and demanding the face of the policy. On July 27, Mr. O'Keefe furnished the company with proofs of loss which were duly received and not objected to. On August 13, the company wrote Mr. O'Keefe acknowledging receipt of the proofs, giving notice that they were willing to repair the building or adjust the damages by appraisers. And on August 20, the company again wrote Mr. O'Keefe, as follows:
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