Northwestern M. L. Ins. Co. v. Sun Ins. Office

• Decision Date: 20 December 1901
• Docket Number: Nos. 12,725 - (119).,s. 12,725 - (119).
• Citation: 85 Minn. 65
• Parties: NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY v. SUN INSURANCE OFFICE and Another. SAME v. AGRICULTURAL INSURANCE COMPANY OF WATERTOWN and Another.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

85 Minn. 65 (1901).

NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY v. SUN INSURANCE OFFICE and Another.

SAME v. AGRICULTURAL INSURANCE COMPANY OF WATERTOWN and Another.¹

Nos. 12,725 - (119).

Supreme Court of Minnesota.

December 20, 1901.

Separate actions in the district court for Ramsey county to recover upon their respective policies of fire insurance, from defendant Sun Insurance Office $2,500 and interest, and from defendant Agricultural Insurance Company of Watertown, New York, $1,500 and interest. The cases, which involve the same issues, were by consent tried together before Jaggard, J., and a jury, which rendered

separate verdicts in favor of plaintiff against defendants for the respective sums demanded. From separate orders denying their respective motions for judgment notwithstanding the verdict or for a new trial, defendants severally appealed. Order denying new trial reversed.

Countryman & Morrison, for appellants.

Durment & Moore, for respondent.

LEWIS, J.

The principal question involved in this case has been considered and determined in N. W. Mut. Life Ins. Co. v. Rochester German Ins. Co., supra, page 48. The policies cover the same building, the same issues were presented in the pleadings, and the court submitted the question of total loss to the jury upon the same theory. The decision in the former case therefore controls this action. Certain evidence, however, as to the value of materials in the walls and the cost of rebuilding, was offered by the insured for the bearing it might have upon the question of total loss, and, as those particular questions were not presented in the other case, it will be necessary to give them attention here.

The court properly rejected the evidence in reference to the value of the brick after they had been taken from the wall, cleaned, and made ready for use again. We need not repeat what was said in the other case, that the insurance was upon the building, and not upon the materials composing it; hence it was of no importance what the brick might be worth after renovation and preparation for rebuilding. They do not remain a part of the building if taken from the walls, and in the process of their removal the building is to that extent completely destroyed.

For the purpose of applying the test laid down in the former case, it was proper to show the value of the walls remaining, in place, as compared with the total cost of rebuilding, and the cost of repairing the walls suitable for that purpose; and for the purpose of showing the value of such walls, in place, after repair, it was competent to show what the cost of erecting new walls would be. The question for the jury to determine was, as of the date of the fire, what a prudent owner, desiring to rebuild, would do under the circumstances, — would he reconstruct, using the walls remaining, in place, or would he build anew from the foundation?

The question of total loss was clearly one for the jury to determine, under proper instructions, that fact not appearing conclusive from the evidence.

During the course of the trial, against appellant's objection, the court directed that the jury view the premises, instructing them as follows:

"You will go in the custody of the deputy sheriff to view the premises involved in this action. You will be careful then and at all...