Letendre v. Auto. Ins. Co. of Hartford, Conn.

• Decision Date: 18 March 1921
• Docket Number: No. 5391.,5391.
• Citation: 112 A. 783
• Parties: LETENDRE v. AUTOMOBILE INS. CO. OF HARTFORD, CONN.
• Court: Rhode Island Supreme Court

112 A. 783

LETENDRE

v. AUTOMOBILE INS. CO. OF HARTFORD, CONN.

No. 5391.

Supreme Court of Rhode Island.

March 18, 1921.

Exceptions from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge.

Action by John F. Letendre against the Automobile Insurance Company of Hartford, Conn. Decision for plaintiff on trial before the court, and defendant excepts. Exceptions overruled, and case remitted, with direction to enter judgment on the decision.

Tillinghast & Lynch and Murdock & Tillinghast, all of Providence (Michael J. Lynch and John A. Tillinghast, both of Providence, of counsel), for plaintiff.

Green, Hinckley & Allen and Abbott Phillips, all of Providence (Clifford A. Kingsley, of Providence, of counsel), for defendant.

SWEENEY, J. This is an action of assumpsit to recover damage to plaintiff's motor truck caused by Are, which was insured against such damage by the defendant. The declaration contained two counts, the first being for the nonpayment of the loss or damage sustained, in accordance with the terms of the insurance policy; and the second count being for the breach of the defendant's contract to properly repair the truck within a reasonable time, it having elected to do so under the terms of its insurance policy. Jury trial was waived, and the case was tried by a justice of the superior court. At the close of the plaintiff's testimony, he was nonsuited on the first count, but subsequently this count was reinstated. At the close of the defendant's testimony, decision was rendered for the plaintiff on the second count, and damages were assessed in the sum of $1,685.89. The case is now before this court on the defendant's bill of exceptions.

The second count alleges that the plaintiff insured his motor truck to the amount of $3,100 against loss or damage by fire; that the truck was damaged by fire; that the defendant was notified of the loss; that the defendant, under a provision in its insurance policy, notified the plaintiff that it would repair, rebuild, or replace the damage to the truck within a reasonable time. It is averred that the defendant took possession of said truck for said purpose, but delayed an unreasonable length of time in making repairs, whereby the plaintiff lost the profits he otherwise would have made from the use of the truck; and that the truck was so improperly housed while in the possession of the defendant, by being left out of doors uncovered and exposed to the elements, that it greatly depreciated in value.

The first exception is to a prior decision of a justice of the superior court in overruling the demurrers filed by the defendant to both counts. The second count, being the one upon which the trial court rendered its decision, is the only one before this court, and only the grounds of demurrer to this count will be considered. Section 24, c. 298, General Laws 1909. The defendant claims as its first ground of demurrer that this count is bad for duplicity, because it sets forth more than one cause of action. An inspection of the count shows that the issuance of the insurance policy, the fire, and the consequent damage to the truck are alleged as matters of inducement to the averment that the defendant notified the plaintiff of its intention to repair, rebuild, or replace the damage to the truck within a reasonable time; and then follows the averment of its failure to properly repair, rebuild, or replace the damage to the truck within a reasonable time. The averment of this breach of duty is the basis of the cause of action stated in this count and it is not bad for duplicity. The second, third, and fourth grounds of demurrer are to the effect that the damages claimed are not provided for by the contract of insurance. Under this count the plaintiff is seeking to recover damages sustained on account of the failure of the defendant to properly repair the truck within a reasonable time, and alleges as special damage loss of profits for unreasonable detention of the truck, and depreciation in its value on account of improper housing. The plaintiff is not suing for the nonpayment of money due under the insurance policy for the loss or damage to the truck caused by fire. In the case of Winston v. Arlington Fire Insurance Co., 32 App. D. C. 61, 20 L. R. A. (N. S.) 960, 16 Ann. Cas 104, the court said:

"The contract of insurance bound the defendant to pay the loss or damage occasioned by fire, not to exceed the stipulated amount. But it reserved an option to the defendant to repair and replace the building. By the exercise of this option and election, in which the plaintiff was bound to acquiesce, the original contract of the parties was converted into a new one on the part of the defendant to repair the building and restore it to its former condition. The contract to pay the loss was thus superseded by the contract to repair. Plaintiff no longer had a right of action upon the former; his sole remedy was upon the new contract."

The distinction between an action on a fire insurance policy, and one brought against the insurance company on account of its...