Kinzer v. The National Mutual Insurance Association

• Decision Date: 09 November 1912
• Docket Number: 17,779
• Citation: 88 Kan. 93,127 P. 762
• Parties: E. J. KINZER, Appellee, v. THE NATIONAL MUTUAL INSURANCE ASSOCIATION, Appellant
• Court: Kansas Supreme Court

127 P. 762

88 Kan. 93

E. J. KINZER, Appellee, v. THE NATIONAL MUTUAL INSURANCE ASSOCIATION, Appellant

No. 17,779

Supreme Court of Kansas

November 9, 1912

Decided July, 1912.

Appeal from Douglas district court.

STATEMENT.

This is an action on a fire insurance policy. The owner of the property recovered and the company appeals. The cause was tried to the court. The facts are stated in the following findings of the court:

1.

"On September 9, 1909, and for a substantial period of time prior thereto, the plaintiff was the owner of Lot No. 40 on Eighth Street in the City of Baldwin, in this county, and on September 9, 1909, made application in writing to the defendant company for a policy of insurance for $ 1000 upon the following described property: '$ 1000 on one story shingle roof, frame building, including 1/2 of brick wall on south side, basement and foundation, occupied as a restaurant.'

"This application was written by the company's agent at Baldwin, signed by the plaintiff, and by the agent forwarded to the company at Pittsburg, Kansas. Upon the receipt of the application, the defendant company issued to the plaintiff the policy in suit, forwarded the same to its agent at Baldwin, who delivered it to the plaintiff, and received the premium therefor. The property insured as described in the policy is as follows:

"'$ 1000 on one story shingle roof, frame building including basement and foundation, the first floor occupied as a restaurant.'

"The policy further provides:

'The application from which this policy is written, and any survey, plan, or description of the property referred to in this policy, shall be a part of this contract, and a warranty by the insured.'

2.

"The building above indicated was a frame building situated upon the lot in question. The lot adjoining Lot No. 40 on the south was owned by another party who had erected thereon a substantial two story brick and stone building, and the plaintiff, prior to the time of the issuance of this policy had purchased from the adjoining owner a one-half interest in the north wall of this brick and stone structure. This north wall, however, formed no part of the frame building insured by this policy, but the south wall of the frame building and the north wall of the brick building were very close together. The brick wall was not injured and the undivided half was worth about $ 250.

3.

"On February 15, 1910, the building above described was totally destroyed by fire, and due proofs of the loss were made, and accepted by the company. Negotiations looking toward a settlement having failed, the company on March 10, 1910 served written notice upon the plaintiff of its election to repair or rebuild the building insured, in harmony with the provisions of the policy, and requested the plaintiff to furnish his plans and specifications, which he did on March 24th, 1910.

4.

"The company at once set about to repair or rebuild the building when it was prohibited from so doing by the City of Baldwin because the Lot No. 40, upon which said building formerly stood, was within the fire limits as prescribed by an ordinance of that city, duly enacted. The company did not offer to repair or rebuild the said building, out of 'stone, brick or other incombustible material, with fireproof roof,' in accordance with the requirements of the fire ordinance of the city.

5.

"The said policy of insurance further provides that in the event that the defendant is prevented from making repairs to any building or property upon which a loss has occurred, by the laws and ordinances of any city wherein such property may be situated, that then and in that event, the plaintiff shall only be liable for the amount that it will cost to make such repairs.

6.

"To rebuild a structure such as the one that was burned would cost $ 977. In arriving at that estimate I find that the value of the salvage did not exceed the cost of tearing it down and removing the debris.

7.

"A reasonable attorney's fee for the prosecution of this action is $ 100."

The court thereupon rendered judgment against appellant for $ 1135.62 which included the sum of $ 977 and interest for one year and $ 100 attorney's fees.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSURANCE--Partial Destruction of Property--Distribution of Loss. A fire insurance policy for $ 1000 covered property described as a frame building and an undivided half interest in a brick wall. In an action upon the policy the court found that the frame building was wholly destroyed by fire without injury to the brick wall, and that the value of the brick wall was $ 250. Held, there being no separate valuation of the properties or distribution of the amount of insurance, the insurer is liable for actual loss of the property destroyed to the extent of $ 1000, and the court rightly refused to deduct from the amount of recovery the value of the brick wall.

2. INSURANCE--Terms "Wholly Destroyed" and "Total Loss" Construed. Property is to be regarded as having been "wholly destroyed" or a "total loss" within the meaning of an insurance contract, no matter how great a portion thereof may remain unconsumed, if it is so injured that it must be torn down or that what remains can not be utilized in reconstructing the building without incurring a greater expense than if it were not so utilized. (Insurance Co. v. Heckman, 64 Kan. 388, 395, 67 P. 879.)

Ord Clingman, of Lawrence, for the appellant.

S. D. Bishop, of Lawrence, for the appellee.

OPINION

PORTER, J.:

Authorities are cited to the effect that the written application and policy are to be...