Sharp v. Niagara Fire Ins. Co.

• Decision Date: 06 May 1912
• Citation: 147 S.W. 154
• Parties: SHARP v. NIAGARA FIRE INS. CO.
• Court: Missouri Court of Appeals

147 S.W. 154

SHARP v. NIAGARA FIRE INS. CO.

Springfield Court of Appeals. Missouri.

May 6, 1912.

1. INSURANCE (§ 612) — FIRE INSURANCE — TIME TO SUE.

A fire policy provided that, in case of a disagreement as to the amount of a loss, it should be ascertained by two appraisers, who should select an umpire. After a loss the two appraisers, after a prolonged effort to agree on an umpire, failed to do so, and insured brought an action on the policy. Held, that the action was not premature; the failure to agree on an umpire not being due to any misconduct by insured or the appraiser appointed by him.

2. PLEADING (§ 412)—FAILURE TO REPLY— WAIVER.

Where a trial was had as though a reply had been filed, the failure to file a reply was waived.

3. FIXTURES (§ 15) —REAL AND PERSONAL PROPERTY—TRADE FIXTURES.

Land includes buildings standing thereon, and whatever is affixed to the soil, and personal property prepared and intended to be used with the land and affixed to it and used with it becomes a part of it by accession; but this rule does not apply, as between landlord and tenant, to trade fixtures, and, in the absence of contract, trade fixtures, unless so incorporated with the realty as to show an intention to make them a permanent addition, or where their removal will seriously injure it, are removable by the tenant as personal property.

4. INSURANCE (§ 500)—FIRE INSURANCE—NATURE OF PROPERTY INSURED.

A building containing machinery constituting an ice plant and soda pop factory stood on a railroad right of way, under a lease to the owner from the railroad company. The machinery was such as was commonly used in such plants. The building and machinery were placed on the land for the advantage of the tenant. Held, that the property was not real property, within Rev. St. 1909, §§ 7020, 7021, providing that, in case of total loss, the measure of damages shall be the amount for which the property was insured, less depreciation in value, but was personal property, and the owner, suing on a policy covering the property, must show the actual cash value at the time of the loss; but, as evidence of value, he could rely on section 7030, providing that no insurer shall take any risk at a ratio greater than three-fourths of the value of the insured property, and when taken its value shall not be questioned in any proceeding.

5. INSURANCE (§ 635)—FIRE INSURANCE—ACTIONS.

A petition, in an action on a policy on real property, issued since the enactment of the valued policy law (Rev. St. 1909, § 7020) need not state the value of the property, since that is fixed by the policy.

6. INSURANCE (§ 152)—FIRE INSURANCE— CONTRACTS—STATUTES.

Rev. St. 1909, § 7020, providing that, in case of total loss, the measure of damages shall be the amount for which the property was insured, less depreciation in value, must be treated as if incorporated in fire policies subsequently issued, under the rule that laws in existence are necessarily referred to in all contracts made thereunder.

7. INSURANCE (§ 500) — FIRE INSURANCE — LOSS—STATUTES.

Rev. St. 1909, § 7030, providing that no insurer shall take any risk at a ratio greater than three-fourths of the value of the property insured, and when taken its value shall not be questioned in any proceeding, applies to policies covering real as well as personal property, and a policy on chattels is valued to the extent of precluding insurer from denying their value when the policy was issued; but, aside from that, it does not influence the question of the amount of the loss sustained.

8. APPEAL AND ERROR (§ 1056)—HARMLESS ERROR — ERRONEOUS EXCLUSION OF EVIDENCE.

Where, in an action on a policy on a manufacturing plant constituting personal property, the evidence showed that a fire occurred 51 days after the issuance of the policy, and that the plant had been running about 5 years, the exclusion of evidence of the purchase price was not prejudicial.

9. EVIDENCE (§ 522)—OPINIONS—FIRE INSURANCE —ADMISSIBILITY—VALUE.

Where, in an action on a fire policy, the cash value of the property at the time of the fire was in issue, the testimony of a witness, who qualified as an expert, as to what it would cost to procure property covered by the policy was competent.

10. INSURANCE (§ 500)—FIRE INSURANCE— "TOTAL LOSS."

The definition of "total loss," as used in the statute concerning valued policies (Rev. St. 1909, §§ 7020, 7021), has no application to cases of insurance of personal property and the adjustment of loss thereunder.

11. INSURANCE (§ 494)—FIRE INSURANCE— LOSS OF PERSONAL PROPERTY—AMOUNT OF LOSS.

Where a manufacturing plant covered by a fire policy and constituting personal property was damaged by fire, the value of articles not destroyed must be considered in ascertaining the actual loss.

12. INSURANCE (§§ 633, 638, 635)—FIRE INSURANCE —ACTIONS—PETITION.

The petition, in an action on a fire policy covering personal property, should state the value of the property at the time of the fire, the pecuniary interest insured had in it, and that the loss was payable.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by T. W. Sharp against the Niagara Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Fyke & Snider, of Kansas City, and Green & Wayland, of West Plains, for appellant. S. M. Meeks and Geo. M. Miley, both of Thayer, for respondent.

NIXON, P. J.

This was an action by the plaintiff on a policy of fire insurance upon property situate in Thayer, Mo. The plaintiff obtained judgment for the sum of $300 on his frame, metal-roof building, and the sum of $2,080 on his machinery, from which the defendant has appealed.

The petition on which the case was tried is as follows (formal parts omitted):

"Plaintiff, for his cause of action, states that the defendant is, and was at all times hereinafter mentioned, a corporation, duly organized and existing, and doing a fire insurance business, under the laws of the state of Missouri, with right to sue and be sued.

"Plaintiff further states that on the 3d day of November, 1910, he was doing business in Thayer, in said state of Missouri, in the name of Crescent Ice Company, and on that date defendant, by its local agent, George M. Durst, made its policy of insurance, whereby, in consideration of the payment by plaintiff to defendant of the premium of $50, defendant insured plaintiff against loss or damage by fire to the amount of $300 on his frame, metal-roofed building, situated on the Frisco Railroad grounds, southeast of the roundhouse, in Thayer, Mo., and $2,200 on boiler, engine, compressor, condensers, brine tank, and all pipes and other permanent fixtures connected with and used for the making and keeping of ice, and also on bottles, cases, filters, tables, and such other fixtures and machinery as is commonly used in bottling works, all while contained in the said building, from noon of the 3d day of November, 1910, to noon of the 3d day of November, 1911. Said policy is herewith filed, marked `Exhibit A,' and made a part hereof. That the language above used in the description of the property so insured is an exact copy of the language used in said policy for said purpose.

"Plaintiff further states that at the time of the issuing of said policy, and at all times from said date to the occurrence of the fire hereinafter mentioned, plaintiff had an interest in all the property insured, as owner thereof, to an amount in each case exceeding the amount of said insurance. That on the 24th day of December, 1910, and while said policy was in force, all of the property herein described was totally destroyed by a fire, including said building, while all the other property mentioned in said policy and covered by the same was contained in said building, and all situated in Oregon county, in the state of Missouri. That there was other and additional insurance upon said property, but that the same was taken out with the knowledge and consent of the defendant, and that at all times herein mentioned, up to the occurrence of the fire herein described, the plaintiff had an interest in all of the property insured, as owner thereof, to an amount in each case exceeding the amount of the aggregate of all the insurance upon said property. That plaintiff duly performed all of the conditions required of him by the terms of said policy, and in due time after said fire, and more than 60 days before the commencement of this action, to wit, on the 20th day of February, 1911, gave to the defendant due notice and proof of the fire and loss aforesaid, and demanded payment of the sum insured. But defendant has failed and refused, and still fails and refuses, to pay the same.

"Plaintiff further states that the defendant has vexatiously refused to pay the amount of said loss under said policy. Wherefore plaintiff prays judgment for the sum of $2,500, with interest thereon, and for the further sum of $250, because of said vexatious refusal to pay said loss, and for a reasonable attorney's fee for plaintiff's attorney."

The answer of the defendant sets up, among other things, the following provisions of the policy:

"This company shall not be liable for a greater amount than three-fourths of the actual cash value of the property covered by this policy at the time of the loss, and in case of other insurance, whether policies are concurrent or not, then for only its pro rata proportion of such three-fourths value.

"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 and estimated according to such actual cash value, with proper deductions 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...