Mound City Roofing Tile Co., a Corp. v. Springfield Fire & Marine Insurance Co., a Corp.

• Decision Date: 29 September 1925
• Parties: MOUND CITY ROOFING TILE COMPANY, a Corporation, Respondent, v. SPRINGFIELD FIRE & MARINE INSURANCE CO., a Corporation, Appellant.
• Court: Missouri Court of Appeals

277 S.W. 349

218 Mo.App. 395

MOUND CITY ROOFING TILE COMPANY, a Corporation, Respondent, v. SPRINGFIELD FIRE & MARINE INSURANCE CO., a Corporation, Appellant.

Court of Appeals of Missouri, St. Louis

September 29, 1925

Rehearing Denied 218 Mo.App. 395 at 410.

Appeal from the Circuit Court of Lincoln County.--Hon. Edgar B Woolfolk, Judge.

REVERSED AND REMANDED. (with directions).

Judgment reversed and cause remanded.

Leahy Saunders & Walther, Bates, Hicks & Folonie and John L. Burns for appellant.

(1) Sound value and loss and damage are correlative terms, and loss and damage are based upon sound value. Collings Carriage Co. v. German American Insurance Co., 97 A. 726; Continental Insurance Company v. Garrett, 125 F. 589. (2) The coinsurance clause is applicable to the facts in the case at bar. Sec. 6239, R. S. 1919; 19 Cyc. page 838; Christian v. Niagara Fire Ins. Co., 101 Ala. 634; Chesbrough v. Home Ins. Co., 61 Mich. 333; Peoria M. & F. Ins. Co. v. Wilson, 5 Minn. 53; Farmers Feed Co. v. Scottish Union Ins. Co., 173 N.Y. 241; Teutonic Fire Ins. Co. v. Mound, 102 Pa. State 89; Pennsylvania Fire Ins. Co. v. Moore, 21 Texas 528; Stevenson v. Agricultural Ins. Co., 116 Wis. 277. (3) Plaintiff's instructions were peremptory instructions for plaintiff and were in violation of the correct sound-value theory in an award and in violation of section 6293, R. S. 1919, and in violation of the coinsurance contract. (4) There was no issue in the case of a vexatious refusal to pay, and the court should not have given any instruction regarding attorneys' fees and a penalty. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399; Patterson v. Insurance Company, 174 Mo.App. 44; Keller v. Insurance Company, 198 Mo. 440; Aufrichtig v. Columbian National, 249 S.W. 912; Goldbaum v. Great Eastern Casualty Co., 222 S.W. 868; Lafont v. Home Ins. Co., 193 Mo.App. 543; Zimmerman v. Southern Surety Co., 241 S.W. 95; Agee v. Employers' Liability Assurance Co., 253 S.W. 46; Miller v. Firemen's Insurance Co., 206 Mo.App. 475; Berryman v. Maryland Motor Car Ins. Co., 199 Mo.App. 503; Merkel v. Railway Mail Association, 226 S.W. 299; State ex rel. v. Allen, 295 Mo. 307.

Jourdan & English for respondent.

(1) A policy of insurance must be construed strictly against the insurer and if there be ambiguity therein the interpretation most favorable to the insured will be adopted. Landrigan v. Missouri State Life Ins. Co., 211 Mo.App. 106; Rosen-Reichardt v. London Assurance Corp., 264 S.W. 433. (2) An appraisal clause in a fire policy which recites that it is binding on the parties as to the amount of loss does not bind the parties as an arbitration contract, but binds them only as to the amount of the loss and not as to the amount of sound value. Security Printing Co. v. Westchester Fire Ins. Co., 204 Mo.App. 401; Dworkin v. Caledonian Ins. Co., 285 Mo. 360. (3) A coinsurance clause incorporated in a fire insurance policy speaks as of the issuance of the policy, and if the insured at the time of taking out the policy maintains the required amount there is no coinsurance, that is to say, the insured bears no portion of the loss unless possibly the insured cancels some of the insurance originally taken out. Oppenheim v. Firemen's Fund Ins. Co., 119 Minn. 421; Packing Co. v. Fire Ins. Co., 67 Mo.App. 215. (4) Assuming the validity of an unsigned coinsurance clause, where the parties have stipulated as to the value of the personal property at the time of the fire, leaving for determination only the value of the real estate at that time, sections 6229, 6230 and 6239, R. S. 1919, conclusively fix the undepreciated value of the real estate and no appraisement can go behind such value. (5) Where fire insurance companies issue policies on real estate and personal property in this State and suit is brought on any policy, the property is conclusively presumed to have been worth at the time of the issuance of said policies the aggregate face amount of all policies issued thereon. R. S. 1919, sec. 6239; Ward v. Ins. Co., 262 S.W. 454; Hilburn v. Ins. Co., 140 Mo.App. 355; Farber v. American Automobile Ins. Co., 191 Mo.App. 329; City of Aurora v. Ins. Co., 180 Mo.App. 263; Spickard v. Fire Ass'n, 164 Mo.App. 1; Told v. Ins. Co., 203 Mo.App. 482-3. (6) Where there is a partial loss of property, real and personal, insurance companies covering the loss must pay the full amount of the loss if insured sues therefor. R. S. 1919, sec. 6231; Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. 399. (7) The coinsurance clause in this policy constitutes merely a promissory warranty, which has to do with other insurance, and such warranty may be and was in this case waived. Murray v. Niagara Fire Ins. Co., 265 S.W. 102. (8) Although in the filing of forms of policies with the Insurance Department the form of a coinsurance clause may be attached to any policy form, such form may not be used except in cities of one hundred thousand (100,000) inhabitants, and only when signed will such clause be effective. R. S. 1919, secs. 6231, 6232, 6239. (9) Where the claim presented in a suit against a fire insurance company is so clear that reasonable minds may not differ thereon the company is liable for vexatious refusal to pay such claim, and the verdict of the jury must stand if there is a clear finding by the jury that the delay has been vexatious. Trembly v. Fidelity, etc., Co., 243 S.W. 201, 203.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.--

This is an action upon a fire insurance policy issued on March 20, 1922. The policy so far as material here is as follows:

"Springfield Fire & Marine Insurance Company of Springfield Massachusetts, in consideration of the stipulations herein named and of sixty-nine and 25/100 dollars premium, does insure Mound City Roofing & Tile Company for the term of one year, from the 19th day of March, 1922, at noon, to the 19th day of March, 1923, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding twenty-five hundred and no/100 dollars, to the following described property while located and contained as described herein, and not elsewhere, to-wit: On buildings, machinery and equipment, including all brick, tile and part frame buildings, adjoining and communicating additions thereto, pallets, trucks, permanent fixtures, signs, awnings, sheds, fences, bins, platforms, bridges, runways, iron smokestacks, equipment and apparatus, including fixed and movable machinery of every description, parts and extra parts of same, tools, implements and utensils, shafting, belting, gearing, pumps, tanks, engines and connections, boiler and all attachments and appurtenances thereto, dynamos, motors, all appliances and connections thereto, office furniture and fixtures, including stationery and advertising matter; also on cars and narrow gauge tracks and all other materials, equipment and supplies, appertaining in whole or in part to said premises, situated on the southwest corner of Morganford Road and Fyler Avenue, St. Louis, Missouri. . . .

"It being optional with the assured and the assured having elected to accept a coinsurance clause in this policy in consideration of the reduced rate at which this policy is written, it is expressly stipulated and made a condition of this contract, that the assured shall at all times maintain insurance on each item of property insured by this policy to the extent of at least one hundred per cent of the actual cash value thereof, and that failing to do so, the assured shall be a coinsurer to the extent of such deficit, and in that event shall bear his, her or their proportion of any loss. . . .

"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 deduction for depreciation however caused, 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; 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. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described. . . .

"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 insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss. . . .

"This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire than the amount hereby insured shall...