Manchester Fire Ins. Co. v. Simmons

• Court: Texas Court of Appeals
• Writing for the Court: Finley
• Citation: Manchester Fire Ins. Co. v. Simmons, 35 S.W. 722, 12 Tex.Civ.App. 607 (Tex. App. 1896)
• Decision Date: 15 February 1896
• Parties: MANCHESTER FIRE INS. CO. v. SIMMONS.<SMALL><SUP>1</SUP></SMALL>

Page 722

35 S.W. 722

MANCHESTER FIRE INS. CO. v. SIMMONS.¹

Court of Civil Appeals of Texas.

February 15, 1896.

Appeal from district court, Grayson county; D. A. Bliss, Judge.

Action by J. J. Simmons against the Manchester Fire Insurance Company to recover upon a policy of insurance. There was judgment for plaintiff, and defendant appealed. Affirmed.

The plaintiff in this cause sued on a contract of fire insurance, issued by the defendant to the A. C. Simmons, Jr., Medicine Company, and assigned by the assured to plaintiff after the loss occurred. Plaintiff sued for $2,000 and interest, alleging that the loss was total, and attaching to his petition, as an exhibit thereto, an itemized list of the property alleged to have been insured and destroyed. Plaintiff alleged "that, subsequent to the fire, the said Simmons Medicine Company and this plaintiff furnished to the insurance company all necessary proofs of the loss by said fire, and in every particular complied with all the requirements set forth in said policy of insurance." The defendant answered by general and special demurrers, and special pleas, setting up that the plaintiff was not entitled to recover— First, because of an alleged breach on the part of the assured of that portion of the policy sued on known as the "iron-safe clause"; second, because of an alleged breach on the part of the assured of that portion of the policy which provides that any change in the interest, title, or possession of the subject of insurance would work a forfeiture of the policy; and, third, because the policy provides that no suit can be maintained upon the policy until the amount of the loss has been ascertained and determined, either by agreement between the defendant and the assured, or, in the event of a disagreement, by appraisers, and that the loss had not been ascertained and determined by either of said methods. Defendant's demurrers were overruled, and the case was tried before a jury, which resulted in a verdict and judgment for plaintiff for $2,084, from which this appeal is prosecuted.

Upon the trial the proof established the following facts: (1) The issuance of the policy, and its assignment, as alleged. The material portions of the policy under which the questions presented arise are as follows: "The Manchester Fire Insurance Company of Manchester, England, in consideration of the stipulations herein named, and of thirty-six dollars and twenty cents, premium, does insure the A. C. Simmons, Jr., Medicine Company for the term of one year * * * against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding two thousand dollars, to the following described property: * * * This insurance is subject to the iron-safe clause as per printed form attached hereto. This 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 depreciations, however caused, and shall in no event exceed what it would then cost the assured to repair or replace the same with material of like kind and quality. Said ascertainment or estimate shall be made by the insured and this company, or if they differ, then by appraisers as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable, pursuant to this policy, shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company, in accordance with the terms of this policy. * * * In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the assured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers, together, then shall estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their difference to the umpire; and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraisers respectively selected by them, and shall bear equally the expense of the appraisal and umpire. * * * This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award of appraisers when appraisal has been required. * * * No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the assured with the foregoing requirements, nor unless commenced within twelve months next after the fire." (2) The loss of the stock of goods insured by fire, their value, and the furnishing of the proofs of loss, as alleged. (3) The fire occurred without the fault of the assured, and the assured complied with all of the terms and conditions of the contract of insurance. The particular facts proven, so far as deemed necessary to be stated, will be set forth under the several assignments of error considered.

Morgan & Thompson, for appellant. Wolfe & Hare, for appellee.

FINLEY, J. (after stating the facts).

The first and second assignments of error are presented together, and complain of the charge of the court in two respects. First, it is urged that the court erred in charging the jury that they might find for the plaintiff the "fair market value" of the property destroyed, because the policy fixed the company's liability at the "actual cash value of the property." The expression "market value" of an article, and its "actual cash value," have practically the same meaning. The proof of actual cash value is furnished by showing what the article is worth in the market,—the market value. If the market...