Lowry v. Fidelity-Phenix Fire Ins. Co.

• Citation: 272 S.W. 79
• Decision Date: 19 January 1925
• Docket Number: No. 15065.,15065.
• Parties: LOWRY v. FIDELITY-PHENIX FIRE INS. CO.
• Court: Missouri Court of Appeals

272 S.W. 79

LOWRY v. FIDELITY-PHENIX FIRE INS. CO.

No. 15065.

Kansas City Court of Appeals. Missouri.

January 19, 1925.

Certiorari Denied April 13, 1925.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

"Not to be officially published."

Action by Maggie Booth Lowry against the Fidelity-Phenix Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Crow & Newman, of Kansas City, for appellant.

J. C. Rosenberger, Rollin E. Talbert, and D. G. Warrick, all of Kansas City, for respondent.

TRIMBLE, P. J.

This is an action on a $2,000 policy of fire insurance on plaintiff's residence in Rosedale, Kan. The policy ran for 3 years from April 28, 1920, and is a Kansas contract, having been applied for, countersigned, issued, and delivered on property in that state. The fire causing the loss herein sued for occurred in the early hours of the morning of December 11, 1921.

The petition, after alleging the execution and delivery of the policy in Kansas and the total destruction of the house by fire, pleaded, in hæc verba, the "valued policy law" of Kansas, consisting of sections 5356, 5357, 5358, and 5359, General Statutes of Kansas 1915, and then alleged that plaintiff duly performed and complied with all of the conditions of said policy and said statutes on her part to be performed, and had demanded payment of said insurance, but defendant had refused to pay, making it necessary for plaintiff to bring this suit and hire attorneys for that purpose and to incur the expense of their fees, the reasonable amount of which is $700, for which amount, together with $2,000 and interest at 6 per cent. thereon from January 7, 1922, judgment was prayed.

The amended answer, on which the case was tried, consisted, first, of a general denial, and it then alleged that, after the policy was issued, another and prior fire occurred, the loss on account of which was adjusted and the sum of $40.50 paid thereon in full of same. The answer further alleged that in the fire sued for, the house was not totally destroyed; and then set up a provision of the policy requiring an appraisement, in case the parties could not agree on the loss, and alleging that plaintiff had refused to join in said appraisal, wherefore she was not entitled to recover.

The reply denied these allegations, and again pleaded a total loss of the property, whereby she was not, under said valued policy law and the decisions of the Supreme Gout of Kansas, notably those of Liverpool, etc., Ins. Co. v. Heckman, 64 Kan. 388, 67 P. 879, and Queen Ins. Co. v. Straughan, 70 Kan. 186, 78 P. 447, 109 Am. St. Rep. 421, required, in that event, to submit to an appraisal.

A trial resulted in a verdict for plaintiff in the full amount of the policy, less the $40.50 which the jury found the defendant had paid in settlement of the former loss pleaded by it, together with interest on the balance from date of demand.

On motion filed for allowance of attorney's fee, as provided in section 5359, Gen. St. Kan. 1915, and evidence introduced thereunder, including the laws and decisions of Kansas in relation thereto, the court allowed $600 as attorney's fees, and rendered judgment for plaintiff on the verdict in the sum of $2,098.95, with interest at 6 per cent. and for costs and for the $600 attorney's fees as a part thereof. Thereupon an appeal was allowed defendant.

There was ample evidence from which the jury could find that the fire resulted in a "total loss" of the dwelling. As applied to the subject of insurance, the phrase "total loss" does not mean that the property insured must be entirely annihilated, nor that any portion remaining after the loss shall have no value for any purpose, but it means "only destruction of the property insured to such extent as to deprive it of the character in which it is insured." And, even though some portion of the building remains after the fire, yet, if it "cannot be reasonably used to advantage in the reconstruction of the building, or will not, for some purpose, bring more money than sufficient to remove the ruins, such building is, in contemplation of the law, a `total loss' or `wholly destroyed.'" Liverpool, etc., Ins. Co. v. Heckman, 64 Kan. 388, 395, 67 P. 879, 882.

The policy is a Kansas contract, and the rights and obligations of the parties accruing thereunder are to be determined according' to the law of Kansas. Ayers v. Continental Ins. Co. (Mo. App.) 217 S. W. 550, 551; Thompson v. Traders' Ins. Co., 169 Mo. 12, 26, 68 S. W. 889; First National Bank v. Security Mut. Life Ins. Co., 283 Mo. 336, 354, 222 S. W. 832.

Plaintiff's instruction No. 1 is as follows:

"The court instructs the jury that the governing law in this case is the law of the state of Kansas where the insurance policy sued on was issued to plaintiff, and where the dwelling house described in the policy was located, and that the statute of Kansas read in evidence is binding upon the defendant company. You are further instructed that by said Kansas statute it is provided that whenever any policy of insurance shall be written to insure any improvements upon real estate against loss by fire, and said property insured should be wholly destroyed by fire, the amount of insurance written in such policy shall be taken conclusively to be the true value of the property insured and the true amount of loss and measure of damages.

"If, therefore, you believe from the evidence that on or about December 11, 1921, the dwelling house described in said policy was wholly destroyed by fire, and that at the time said policy was issued and at the time of said fire plaintiff was the owner of said dwelling house, then $2,000, the amount of insurance written in each policy, shall be taken by you conclusively to be the true value of said house and the true measure of plaintiff's loss and her measure of damages, unless you further believe from the evidence that defendant company paid out to or for plaintiff a sum, not exceeding $40.50, under said policy, on account of damage done by fire of May 6, 1921, in which event you should deduct such amount (not exceeding $40.50) from said $2,000; but, if you find from the evidence that nothing was paid by the company to plaintiff on account of said fire of May 6, 1921, and that defendant company repaired or attempted to repair such damage in such unworkmanlike manner that such repairs were without value, if you so find, then you would have no right to make said deduction. You are further instructed that, if your verdict be in favor of the plaintiff, and you should find from the evidence that her house was wholly destroyed by fire, then she is entitled to interest on the amount which you may find due her, at the rate of 6 per cent. per annum from December 30, 1921, up to the present date."

It is urged that this instruction is erroneous because: (a) It tells the jury that the statutes of Kansas introduced in evidence is the law of Kansas; (b) it was an unwarranted comment upon the evidence; and (c) it deprived the defendant of its defenses, in that it ignores the defense of payment of the $40.50 loss in the former fire, and ignores its defense that the loss involved herein was a partial loss.

As to the first objection, the official printed statute book of Kansas, known as the General Statutes of Kansas 1915, published by authority of the state of Kansas, and carrying the due authentication of the Attorney General and Secretary of State of Kansas, was the work introduced; section 5356 of which, as far as applicable, is as follows:

"Whenever any policy of insurance shall be written to insure any improvements upon real property in this state against loss by fire, tornado or lightning, and the property insured shall be wholly destroyed, without criminal fault on the part of the assured or his assigns, the amount of insurance written in such policy shall be taken conclusively to be the true value of the property insured, and the true amount of loss and measure of damages. * * *"

The statutes and the decisions of Kansas pleaded were introduced without objection, and the case was tried on the theory that they contained the law governing it. Nothing appeared which in any way controverted or questioned the authenticity of the statutes. It was the duty of the trial court to instruct the jury as to the law of the case, the same as its duty to declare the law of our own state in a case governed by it. Slaughter v. Metropolitan Street Ry., 116 Mo. 269, 277, 23 S. W. 760. The proof, which was offered to show the Kansas laws, was written, official, documentary evidence. The foreign law was not sought to be proved by oral testimony of experts learned in that law. If it had been, doubtless it should have been left to the jury to say whether it should be believed or not; but, if a written law be proved, it is the duty of the court to construe it and instruct the jury as to its meaning and effect. Charlotte v. Chouteau, 33 Mo. 194, 200. An instruction which assumes an uncontroverted fact, and on the theory of which the case is tried is not erroneous. Midway National Bank v. Davis, Director General, 288 Mo. 563, 581, 233 S. W. 406; Dee v. Nachbar, 207 Mo. 680, 698, 106 S. W. 35; Godfrey v. Kansas City, etc., Power Co., 213 Mo. App. 139, 247 S. W. 451, 455; Davidson v. St. Louis Transit Co., 211 Mo. 321, 356, 109 S. W. 583.

As to the second objection, the instruction shows on its face that it does not comment upon the evidence. It does enumerate the ultimate facts necessary to be found before the jury can render a verdict for plaintiff. Of course, it is proper for the court to require the jury to find the ultimate facts essential to plaintiff's right of recovery. Decisions condemning instructions which single out portions of the evidence and give undue prominence to them, or which tell the jury that certain specifically mentioned evidence established a fact in issue, or which quotes a part of a conversation and tells...