Monteleone v. Royal Insurance Company of Liverpool and London

• Decision Date: 18 November 1895
• Docket Number: 11,751
• Citation: 47 La.Ann. 1563,18 So. 472
• Court: Louisiana Supreme Court
• Parties: ANTONIO MONTELEONE v. ROYAL INSURANCE COMPANY OF LIVERPOOL AND LONDON

18 So. 472

47 La.Ann. 1563

ANTONIO MONTELEONE v. ROYAL INSURANCE COMPANY OF LIVERPOOL AND LONDON

No. 11,751

Supreme Court of Louisiana

November 18, 1895

OPINION

WATKINS, J.

ON REHEARING.

The following are the grounds of defendant's motion, viz.:

1. That there is error in the said opinion, in so far as it holds that there was a constructive total loss of the buildings described in plaintiff's petition as the consequence of fire; that the fact and truth was and is, that any loss suffered by plaintiff in the premises, and due to fire, can easily be differentiated and separated from the loss due to the general bad condition of his buildings; to their age consequent infirmities and defects, and to the consequent necessity, as found by the court, of tearing down the same after the fire alleged to have been the cause of all the loss suffered by plaintiff.

2. That there is error in the opinion of the court in that it finds that the lower court adopted the minimum valuation of witnesses as to the value of the premises described in plaintiff's petition, whereas in truth and in fact both the lower court and this court adopt the maximum valuation, and that the finding of the court as to the measure of damages is erroneous, even if defendant and appellant is to be held liable for the value, at the time of the fire, of all the buildings and constructions described in plaintiff's petition.

3. That there is error in said opinion in holding that the defendant and appellant should be mulcted in the value of one-half of the party wall, which did not belong to the plaintiff at all and for which, as appears from the record, he has already instituted suit against third persons.

4. That there is error in the opinion of the court in so far as it holds the insurance company liable for the value of the yard wall, the value whereof is expressly excluded from consideration under the terms of the policy sued on.

1. Was there "a constructive total loss of the buildings described in plaintiff's petition as the consequence of the fire?"

Is there error in our opinion in this respect?

Defendant's counsel put their proposition thus:

"Upon the first point then we respectfully submit that the court should, as the first element in deciding upon the amount of plaintiff's recovery, fix upon the value of the property forming the subject-matter of the total loss which, if you assume the whole of the front building to be lost, will be somewhere between three thousand dollars and five thousand three hundred and thirty-three dollars and thirty-three and one-third cents. And taking those figures as a starting point, then deductions or additions should be made according to the views of the court upon the following propositions:

"The burden of proof was upon plaintiff, and he has failed by a fair preponderance of proof to show that the loss is as high as the second-named figures. To give him the average of the two, or four thousand one hundred and sixty-six dollars and two-third cents, is more than fair. To give him three thousand dollars seems to us the necessary result of the present state of the record." Brief, p. 4.

Consulting plaintiff's petition, we find the following allegations, viz.:

"That your petitioner is the bona fide and legal holder of fire policy No. 4,368,896, issued by the (defendant) company for ten thousand dollars, upon the buildings and improvements on the property situated at the corner of Royal and Customhouse streets.

* * * * * * *

Said buildings and improvements being designated in said policy as consisting of a three-story brick slated building, and rear building attached."

The petition further represents "that, on the 28th of October, 1891, * * * a fire occurred in the premises immediately adjoining your petitioner's above described property, and was communicated to the said buildings and improvements, covered by said policy, and that the effect of the said fire was such that the said buildings and improvements, covered by said policy, were greatly injured and damaged thereby; and the loss by said fire to your petitioner was practically a loss and entire destruction of the property insured aforesaid; and your petitioner is entitled to recover on the said policy for the total loss of the property insured."

Therefore, plaintiff's claim is the total loss of all the buildings insured, and his averment is that the loss by said fire "was practically a loss and entire destruction of the property insured;" that is to say there was a constructive total loss of all the property insured.

In our opinion we say:

"The serious question in this case is as to the amount of the loss. The building was old, and the copious testimony as to its walls, flooring, joists, openings, and in other respects, produces the conviction that the building when insured was not sound.

"It was seriously affected by the fire, both by the flames and the falling walls.

"The party wall was so injured as to be useless; that portion dividing the yards was inclined; the wall opposite the party wall -- that is, on the Customhouse (street) side -- was strained; and there is testimony (that) the cross wall leaned and (that) the joists were charred.

"Of course, the injuries by the fire were the more serious because of the condition of the premises, requiring, it seems, girders and other appliances to hold it together; and it is in proof that, at the time of the fire, necessary repairs were being made. The current of the testimony is (that) the building was old and frail before the fire -- one of the witnesses testifying that it was unsafe, and that it was so injured by the fire as to make it insecure, even with the repairs to be made.

"In this condition the building was condemned by the City Engineer, and there was a refusal on the part of the city authorities to permit any repairs. The public safety, in their opinion, required the building should be rebuilt."

After thoroughly reviewing the evidence applicable to the situation just described, the opinion says:

"Conceding the action...