Samuels v. Illinois Fire Ins. Co., 23364

• Decision Date: 04 December 1961
• Docket Number: No. 23364,23364
• Citation: 354 S.W.2d 352
• Parties: Willie S. SAMUELS and Alma Jean Samuels, Plaintiffs-Respondents, v. ILLINOIS FIRE INSURANCE COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 352

354 S.W.2d 352

Willie S. SAMUELS and Alma Jean Samuels, Plaintiffs-Respondents, v. ILLINOIS FIRE INSURANCE COMPANY, a corporation, Defendant-Appellant.

No. 23364.

Kansas City Court of Appeals, Missouri.

Dec. 4, 1961.

On Motion for Rehearing Feb. 5, 1962.

George W. Meyer, Meyer, Smith & Shute, Kansas City, for appellant.

Lillie Knight, Kansas City, for respondents.

CROSS, Judge.

Plaintiffs, husband and wife, sue defendant insurance company to recover damages for breach of its duty to complete repairs on their dwelling house which was damaged by fire. Defendant appeals from a judgment entered on a jury verdict awarding plaintiffs damages in the sum of $7,667.00.

On December 9, 1955, defendant issued a fire insurance policy in the amount of $5000.00 on plaintiffs' four room bungalow for a term of five years. On April 8, 1959, and while the policy was in force, the house was partially destroyed by a fire. Plaintiffs duly notified defendant of the fire and entered into negotiations with defendant for payment of their loss.

At the request of defendant, plaintiffs furnished two estimates of the cost of repairs, amounting to $4,475.00 and $4,485.50, respectively. Defendant secured a contractor's bid in the amount of $1719.00 and an additional estimate in the sum of $1838.00, and informed plaintiffs it would not pay more than the first named amount for the repairs. Plaintiffs were also informed that they would have to employ the contractor. Plaintiffs refused the offer and the negotiations ended.

On April 24, 1959, plaintiffs gave defendant notice in writing to repair the building in accordance with the provisions of Section 379.150, V.A.M.S., which reads as follows:

'Whenever there is a partial destruction or damage to property covered by insurance, it shall be the duty of the party writing the policies to pay the assured a sum of money equal to the damage done to the property, or repair the same to the extent of such damage, not exceeding the amount written in the policy, so that said property shall be in as good condition as before the fire, at the option of the insured'.

Defendant thereafter employed B. E. Baer, a contractor, to repair the house at a cost of $3143.00. Baer took over the property and began the repairs during the week of July 21, 1959, but discontinued after working a few days, and abandoned the property. No further repairs were ever made.

Plaintiffs filed this suit on August 4, 1959. In their amended petition they allege that defendant was not diligent in repairing the house; that with reasonable diligence the repairs could have been completed by June 24, 1959, and at a cost not to exceed $5000.00; that defendant, after employing its contractor to do the work in July, 1959, stopped the repairs after a few days and refused to proceed further with them; that defendant abandoned and left the house open and without protection from the weather, permitting the entry of snow and rain; that the action of those elements, during the long delay that ensued without completion of the repairs, caused the repairable portion of the house which survived the fire to become weakened, deteriorated, irreparable, and unfit for use and beyond repair, and made it necessary to tear down and remove the remaining portion of the house and to build a new structure. Plaintiffs claim damages amounting to the cost of tearing down and rebuilding the house, and their loss of its rental value.

The principal issue of fact in this case is whether it was possible to repair the damaged structure as it stood at the time of trial, so that it would be in as good condition as before the fire. Defendant so contends--plaintiffs to the contrary. Plaintiffs claim it was not possible to use any of the damaged building (except the foundation, sewer and excavation), but that it was necessary to tear down and rebuild the standing portion in order to restore it to as good condition as it was in before the fire.

The house is of frame structure, with stucco exterior, containing three rooms on the first floor and a fully finished bedroom with a large closet on the second floor. It has a full basement which contains a sleeping room, a full bathroom, a hot water tank and a furnace. The first and second floor walls are lath and plaster. The roof is covered with asphalt shingles. The house has two porches, front and rear. A witness for plaintiffs estimated the age of the house at 20 years. Defendant's witness estimated the house to be from 35 to 40 years old. It was agreed between the parties that the house was rented for $50.00 per month, at the time of the fire. For the previous nine years it had been leased and occupied by the same tenants.

The fire caused considerable damage to the millwork, walls and decorations in the three rooms on the first floor and in the second floor room. All the wood trim around the windows and doors was burned, and the floors and stairway to the second floor were scorched and blistered. The fire burned through the lath in many places on the walls. One exterior wall had a hole burned through it to the outside. All the windows were broken out. There were large holes in the ceilings of the first floor. The ceiling of the front porch was blistered and burned. The outside doors were burned and the guttering was destroyed. The outside stucco surface of the house was damaged and discolored by smoke.

It was plaintiffs' testimony that soon after the fire they cleaned up the debris and boarded up the windows and doors, but that shortly after August 1, 1959, they discovered that the boards had been removed and that all the windows in the house were open except those opening onto the porches, that some new window frames had been made and installed, but that the work had been abandoned. It appears that the house remained open and exposed to the weather until the date of trial, October 24, 1960.

Plaintiffs produced three witnesses who testified that the standing damaged structure was unsuitable for use in restoration of the house. Leon Maslan, an architect and consulting engineer, examined the building on October 20, 1960. He found: the windows were all out; the basement door was open; upstairs, all the windows were open; the plaster on the ceilings and walls was falling off; the floors sagged, 'it was quite obvious that the water had been standing on the floors'; what remained of the light fixtures were rusted; the furnace was completely rusted out and the ducts had fallen out; freezing and thawing had destroyed the electric wiring; the plumbing pipes had rusted out; the bathroom fixtures were rusty from exposure to the weather; moisture had rusted the metal stucco support and the stucco was loosened; the studs, floors and floor joists had deteriorated, sagged and become unusable as a result of exposure to snow, rain, heat, cold, and moisture in the air; freezing and thawing had caused the mortar between the cement blocks in the foundation to deteriorate and powder out and it would take considerable work to restore the foundation; the roof was usuable but the expense of shoring it up while the studs and flooring were replaced would be prohibitive, and it would not be possible to match the color of the shingles. The witness stated that the excavation and the main sewer could be used in rebuilding; that the cheapest construction possible is $10.00 per square foot, and that it would cost $6000 to rebuild the house, making use of the excavation, foundation and main sewer. Claude A. Bloomer, a building contractor, inspected the building in May, 1960. He testified that: the foundation was cracked and deteriorated but it could possibly be used if repaired; the main sewer could be used in rebuilding the house; the remaining portion of the house could not be used in rebuilding because the floor joists, floors and studs would have to be removed and replaced; the interior walls and floors were not usable; a house damaged by fire and left open to the weather and moisture for 18 months would deteriorate so that the wood in the structure would not be suitable for use. The witness stated that a house could not be built for less than $10.00 a square foot and that it would cost between $6000 and $7500 to tear down and remove the unusable portion of the building and rebuild it. Robert F. Coleman, an experienced house builder, also testified that the standing portions of the house could not be repaired and used, and that it would 'now' cost between $6500 and $7500 to rebuild the house.

Defendant introduced testimony to the effect that the damaged house could be repaired without being torn down and rebuilt. William G. Nelson (the contractor who submitted the original bid of $1719.00) examined the house four times. He stated that there was no deterioration in the joists, walls, studding, steps, rafters and the entire structure; and, that he could repair the building 'right now' for $3792.00 and put the house back in first class condition. The witness testified that if the foundation and main sewer were the only usable parts of the building it would cost $6871.00 to rebuild the house. B. E. Baer testified for defendant that it had employed him to make the repairs on plaintiffs' home for an agreed price of $3143.00, that he began and performed repairs of a value of $133.40, but discontinued the work, at defendant's request. The witness testified that he closed the windows and doors when he left the property and stated that in his opinion the house was structurally sound and could be repaired. C. P. Conway, a foreman employed by B. E. Baer, also testified on defendant's behalf. He was in charge of the repairs which Baer started to make on plaintiffs' house. He testified that when the work was closed down a few days later the windows and doors were boarded up and that in his opinion the house was repairable at the time of the trial. R. O. Cope, a building contractor, testified that at defendant's request he submitted an estimate...