Lux v. Milwaukee Mechanics Insurance Co.

• Decision Date: 09 May 1927
• Citation: 295 S.W. 847,221 Mo.App. 999
• Parties: I. M. LUX, APPELLANT, v. MILWAUKEE MECHANICS INSURANCE COMPANY, RESPONDENT. [*]
• Court: Kansas Court of Appeals

295 S.W. 847

221 Mo.App. 999

I. M. LUX, APPELLANT, v. MILWAUKEE MECHANICS INSURANCE COMPANY, RESPONDENT. ^[*]

Court of Appeals of Missouri, Kansas City

May 9, 1927

Appeal from the Circuit Court of Jackson County.--Hon. Samuel A Dew, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Frank M. Lowe, I. M. Lux and John D. Wendorff for appellant.

Fyke Snider & Hume for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is an action seeking to recover on a policy of fire insurance.

Defendant is a corporation organized and existing under the laws of the State of Wisconsin, engaged in writing policies of fire insurance, and duly authorized to transact business in the State of Missouri. Plaintiff is a resident of Kansas City, Mo., and in January, 1918, was the owner of a two-story frame residence located at 3604 Thompson avenue in said city.

On January 9, 1918, in consideration of the payment of $ 28 premium, defendant issued its policy of fire insurance on plaintiff's said property, insuring same for a period of three years against loss or damage by fire in the sum of $ 3500, for total loss. The policy issued was the standard form containing usual provisions. The property insured is described in the policy as a two-story frame shingle roof building. On January 30, 1918, a fire occurred in said building. According to plaintiff's evidence the building was so badly damaged by the fire that the superintendent of buildings in the city of Kansas City, Mo., on February 15, 1918, ordered plaintiff to tear the building down at once, which was done. There appears to have been some ineffectual effort made to adjust the loss. The order for the destruction of the building was in writing, as follows:

"Superintendent of Buildings' Office.

"Kansas City, Mo., Febr. 15, 1918.

"To I. M. Lux,

"3604 Thompson,

"Upon a thorough examination and inspection of the frame bldg., located at 3604 Thompson street, in Kansas City, Missouri, by Chas. Lyon, a regular qualified inspector of this department, the following conditions are found to exist respecting said building, to-wit: Impaired by fire and dangerous to adjoining neighborhood. And you, as the owner of such building, are hereby notified to cause said building to be torn down to satisfaction of Building Department at once. And unless you commence the work by 12 o'clock noon of the at once day following the reception of this notice and employ sufficient labor to do the same as expeditiously as it can be done, then such proceedings will be taken in hand against you as are authorized by Ordinance No. 38919 of the City of Kansas City Missouri, approved March 9, 1918.

"(Signed) F. B. HAMILTON,

"(By) J. H."

The petition charges "the property was destroyed by fire, that it was burned in such a condition that the outside frame still remained and that under proper conditions, could have been repaired." That on or about January 30, 1918, plaintiff notified the defendant of the said fire and furnished proof of loss, and made demand for the amount due; that plaintiff had estimates of the damage made and submitted same to defendant; that defendant refused payment of the loss, and also refused to proceed to repair the building; that on or about February 15, 1918, plaintiff was served with the notice above referred to from the superintendent of buildings of Kansas City, Mo.; that plaintiff thereupon notified defendant of the order to tear the building down. The petition sets out section 8 of Ordinance No. 38919, which is the building code of the city, as follows:

"The Superintendent of Buildings shall have full discretionary powers of declaring to be a public nuisance, any building, any structure or part thereof that is unsafe as to fire or for the purpose used or has become unsafe from fire, decay or other causes and shall institute such proceedings and take such steps as may be necessary for the immediate abatement of any and all such nuisances."

Also section 255, or a part thereof, as follows:

"Any owner, occupant or agent so notified as above provided, who shall fail, neglect or refuse to comply with such notice within the time provided by such notice shall be deemed guilty of misdemeanor, and every day's continuance of such nuisance, shall be deemed and taken to be a separate and distinct offense."

The petition recites that, pursuant to said notice, that part of said building remaining unburned was torn down by plaintiff; that plaintiff suffered the total loss of said property which was of the reasonable value of $ 4500, and that the said fire was the direct cause of the loss and damage. Judgment was sought in the sum of $ 3500, the face value of the property, with interest at six per cent from January 30, 1918, and $ 350 attorney fees.

The answer is a general denial but admits defendant's corporate existence and the issuance of the policy, as alleged in the petition. As affirmative defense the answer pleads the following clause in the policy:

"This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs . . . and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality, . . . and the amount of loss or damage shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proofs of loss have been received by this company in accordance with the terms of this policy."

The answer specifically denies that the damage to the insured properly was as great as the petition alleges; states the policy sued on provides the company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deductions for depreciation, and shall in no event exceed what it would cost to replace same. And defendant states the said clause, as pleaded, provides the method for such ascertainment, the period in which the amount ascertained shall be paid, and in the event of disagreement between the parties as to the amount of the loss, there shall be chosen disinterested appraisers to estimate the loss. Further, the answer pleads that a disagreement arose between the parties as to the amount of the loss, and that the amount never has been determined by appraisers, as provided in the policy.

The answer specifically denies that plaintiff received notice from the superintendent of buildings to tear down said building; denies that a notice was served upon plaintiff under and by virtue of ordinance No. 38919; alleges that section 8 of said ordinance and also section 255 thereof referred to in the petition are illegal, unconstitutional and void, and in direct violation of section 30, article 2 of the Constitution of Missouri, which provides that no person shall be deprived of his life, liberty or property without due process of law; and in violation of section 1, article 14 of the Constitution of the United States, which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws. The answer further denies that the policy sued on was in force and effect at the time the said fire is alleged to have occurred and, therefore, no cause of action had accrued to plaintiff at the time this action was brought, and states this suit was prematurely brought.

The reply is a general denial. The cause was tried to a jury resulting in a verdict for plaintiff in the sum of $ 2350, and judgment therefor was entered accordingly. Plaintiff was not satisfied with the amount of the verdict and after timely motion for a new trial was overruled he brought the case here by appeal.

There was a constitutional question properly and timely presented in the answer of defendant. It was kept alive when defendant offered an instruction declaring the ordinance pleaded by plaintiff was unconstitutional. But the ruling of the court on that instruction was in favor of plaintiff, defendant did not except thereto, and has not appealed. Plaintiff appealed and, of course, has no complaint of that ruling. The constitutional question, therefore, disappears from the case. This was the ruling of the Supreme Court on certification of the case by this court to that tribunal.

The main point for determination on this appeal is whether there was a total loss of the house within the meaning of the policy and the law. Plaintiff proved that his building was damaged by fire to the extent that it was declared a nuisance by the superintendent of buildings; plaintiff was ordered to remove it and by his compliance with said order, he suffered a total loss and was entitled to damages accordingly. Of course the theory of defendant is to the contrary and it is on this point this legal battle is waged.

The record discloses that the trial court admitted in evidence sections 8 and 255 of ordinance No. 38919 of Kansas City Mo., approved March 9, 1908, only for the purpose of showing the authority under which the city acted as to the disposition of the remainder of the structure in question, the theory of the court being that the disposition of the remainder of the building, under the order of the superintendent of buildings had nothing to do with the extent of damage to said building. This ruling of the trial court is assigned as error. It is urged that plaintiff tore down said building in conformity with the order and thereby sustained a total loss. As...