Palatine Ins. Co. v. Nunn

• Decision Date: 22 May 1911
• Docket Number: 15,072
• Parties: PALATINE INSURANCE COMPANY LT'D v. KATE NUNN
• Court: Mississippi Supreme Court

55 So. 44

99 Miss. 493

PALATINE INSURANCE COMPANY LT'D v. KATE NUNN

No. 15,072

Supreme Court of Mississippi

May 22, 1911

APPEAL from the circuit court of Hinds county, HON.W. A. HENRY Judge.

Suit by Kate Nunn against the Palatine Insurance Company Limited. From a judgment for plaitiff the defendant appeals.

The facts are as follows:

Appellant instituted suit upon a policy of two thousand and five hundred dollars, insuring a two-story frame building from loss or damage by fire. The appellee claims in its plea that the damage is only fourteen hundred dollars, and is therefore not a total loss. To this plea a replication was filed, which set up that the house was within the fire limits of the city and could not be repaired and rebuilt as a frame building and was therefore useless, and the loss amounted to a total loss. A demurrer was filed to the replication, which was overruled; and, the insurance company declining to plead further, final judgment was rendered for the full amount sued for.

Affirmed.

Green &amp Green, for appellant.

Filed an elaborate brief contending first that the valued policy law, Code 1906, section 2592, does not apply to the contract in this case; and second that conceding the applicability of the valued policy law to the contract in the case, it was not a valid exercise of power; and third that conceding the applicability of the valued policy law and its constitutionality, the ordinance of the city of Jackson was void, not authorized and violative of the Constitution. Citing the following authorities: Assurance Company v. Phelps, 77 Miss, (1900) 658; Insurance Co. v. Shlenker, 80 Miss. 682; Turnipseed v. Hudson, 50 Miss. 436; Brown v. Royal Insurance Co., 102 Eng. Common Law, 853; Brady v. Insurance Co., 11 Mich. 425; Insurance Co. v. Garlington, 18 S.W. 338; Association v. Rosenthal, 108 Pa. St. 474; Insurance Co. v. Eddy, 54 N.W. 856; Sandberg v. St. Paul & D. R. Co., 83 N.W. 410; Insurance Co. v. Garlington, 66 Tex. 103, 18 S.W. 337; Brady v. Insurance Co., 1 El. & El. 853; Association v. Rosenthal, 108 Pa. St. 471, 1 A. 303; Monteleone v. Insurance Co., 47 La. Ann. 1563, 18 So. 473; Joyce Ins., sec. 3170; Monteleone v. The Royal Insurance Co., 47 La. Ann. 1563, 18 So. 472; Hewins v. London Assurance Corp., 184 Mass. 178; McCrady v. Insurance Co., 61 A.D. 584; Association v. LeFlore, 53 Miss. 1; Ex parte Drexel, 147 Cal. (1905) 766; Mugler v. Kansas, 123 U.S. 661, 8 S.Ct. 297; Steel Co. v. State, 66 N.E. (1903) 1007; Allegeyer v. Louisiana, 41 L. Re. 836; Section 1, Article 10 of the Federal Constitution; Lochner v. New York, 198 U.S. (1905) 56; Harper v. California, 155 U.S. (1184) 662; Powell v. Pennsylvania, 127 U.S. 678, 684; Allegeyer v. Louisiana, 165. U.S. (1896) 589; Wilby v. State, 47 So. 465; Alley v. State, 51 So. 467; State v. Pipe Line, 61 Ohio St. (1900); State v. Marcus, 185 N. Y. (1906) 257; 2 Story, Const. (5th Ed.), par. 1950; People v. Otis, 90 N.Y. 48; State v. Goodwill, 33 W.Va. 179, 10 S.E. 285; State v. Loomis, 115 Mo. 307, 22 S.W. 360; Com. v. Perry, 155 Mass. 117, 28 N.E. 1126; Godcharles v. Wigeman, 113 Pa. St. 431, 6 A. 354; State v. Jacobs, 98 N.Y. 98; People v. Gillson, 109 N.Y. 389, 17 N.E. 363; Millett v. People, 117 Ill. 294, 7 N.E. 631; Ritchie v. People, (Ill. Sup.), 40 N.E. 454; State v. Ashbrook, 154 Mo. 375; Booth v. Connecticut, 4 Conn. 67; Van Horn v. Dorrance, 1 L.Ed. 391.

Harris & Potter, for appellee.

The question is here presented whether the loss was total or partial.

"The fair and reasonable interpretation of a policy of insurance against loss by fire, will include within the obligation of the insurer, every loss which necessarily follows from the occurrence of the fire to the amount of the actual injury to the subject of the risk, whenever that injury arises directly and immediately from the fire, or necessarily from incidental and surrounding circumstances, the operation and influence of which could not be avoided. Under this rule, what was the plaintiff's loss in the present case: The property insured was situated within the fire limits of Detroit, within which the reconstruction or repair of any wood building injured by fire was prohibited, unless by leave of the Common council. To hold that for an injury to the property which results, without fault of the insured, in a total loss to him, so far as value and use are concerned, the insured can only receive compensation to the extent of the appraised damage to the materials of which the building was constructed, and which were destroyed, would establish a narrow, illiberal and illogical rule. The value of the building consisted in its adaptation to use, as well as in the material of which it consisted and if it could not be restored to use after the fire, the loss was total."

Brady v. Ins. Co., 11 Mich. 425.

"If a building covered by a policy is located within the fire limits of a city and is of such class that under certain conditions the city ordinances prohibit the repair or reconstruction of such building, recovery may be had as for a total loss when the repair or reconstruction of the building insured and damaged is prevented by reason of such ordinance." Cooley's Brief on Ins., vol. 4, 3050.

"In Brady v. Insurance Company, 11 Mich. 425, it was held that when an ordinance prevented the repair of a building which has been practically destroyed by fire, the loss was total, although the cost of restoring the building to its original condition would have been much less than the amount of insurance. The case seems to have been elaborately argued and the reasoning of the court by which the deceision was supported seems to us to be sound. The same principle has been recognized in other jurisdictions. Monteleone v. Royal Ins. Co., 47 La. Ann. 1563; Hamburg-Breman Ins. Co. v. Garlington, 56 Tex. 103; Larkin v. Glenn Falls Ins. Co., 80 Miss. 527. These cases support the general proposition that, where the law prohibits the repair of a building which has been partially destroyed by fire, in the absence of any express provision in the policy to the contrary, the loss is not measured by the sum required to restore the building to its condition before the fire, but it is total, less the value of the remaining materials for removal, since the change in the building is caused solely by fire, the difference in its value caused by that change is loss or damage by fire within the meaning of the policy." Hewins v. London Assurance Co., 184 Mass. 177.

Under the city ordinances forbidding the repair of any wooden building within the fire limits, destroyed to the extent of one third of its value, a building so injured by fire constitutes by reason of the ordinance, a total loss. Hamburg-Bremen Fire Ins. Co. v. Garlington, 66 Tex. 103.

A building is totally destroyed where it is injured by fire to such extent, that under an ordinance of the municipality, it being within the fire limits, it can not be repaired, as such ordinance is a part of the contract of insurance and the insurer is bound thereby. Larkin v. Ins. Co., 80 Miss. 527; Ins. Co. v. Rosenthal, 108 Pa. 474; Ins. Co. v. Eddy, 54 N.W. 856; Sandbery v. St. Paul & D. R. Co., 83 N.W. 410; Monteleone v. Royal Ins. Co., 56 L. R. A. 784, and note; Joyce on Ins., sec. 3170; May on Insurance, sec. 421a.

The question is presented in this case whether or not under our valued policy law, a company can limit its liability in a case of a total loss, as is here shown to have been sustained, by inserting in the policy a provision that the company shall not be liable "beyond the actual value destroyed by fire, for loss occasioned by odinances or law regulating construction or repair of buildings."

"An insurance company must determine the valuation of the property. It can then insure such parts of that valuation as the parties may agree on, but whatever amount it does insure, receiving premiums on that amount, is the final measure of its liability in case of total loss, and it can not reduce this amount by inserting in the policy provisions seeking to impose upon the insured the burden of co-insurer. The amount named in the policy and on which amount the insured pays premium, is practically liquidated damages in case of a total loss. There is nothing harsh about the law. It was manifestly enacted to meet and remedy a thoroughly well known evil, and it is as perfectly a part of the contract, being written into it, as any other stipulation therein. The statute supervenes all policies issued under it and writes out of them all stipulations inconsistent with itself." Insurance Co. v. Philips, 77 Miss. 625; Insurance Co. v. Shlenker, 80 Miss. 667; Insurance Co. v. Enslee, 78 Miss. 157; Insurance Co. v. Antram, 86 Miss. 224; Havens v. Ins. Co., 26 L. R. A. 107, and note.

Counsel for appellant contends that section 3352, Code 1906, does not give the city of Jackson authority to enact the ordinance set out in the replication. This section gives the city the right "to establish fire limits; to regulate, restrain or prohibit the erection of buildings made of sheet iron, wood or any combustible material within such limits as may be prescribed by ordinance." This section not only gives authority to establish a fire limit, which we think would be enough (Alexander v. Greenville, 54 Miss. 659), but under section 3352, the city is given authority to regulate buildings made of sheet iron, wood or any combustible materials to restrain buildings made of combustible material within the fire limits or to prohibit altogether their erection therein.

Regulate is defined by Webster, "To adjust by rule, method or established mode, to direct by rule or restriction, to subject to governing principles of law." "To restrain is to prohibit, limit, confine or abridge a thing. It may be...