Simon v. Queen Ins. Co. of America

Decision Date16 December 1907
Docket Number16,756
Citation120 La. 477,45 So. 396
CourtLouisiana Supreme Court
PartiesSIMON et al. v. QUEEN INS. CO. OF AMERICA. In re QUEEN INS. CO. OF AMERICA

Certiorari to Court of Appeal, Parish of Caddo.

Action by S. B. Simon and others against the Queen Insurance Company of America. Judgment for plaintiffs was reduced in the Court of Appeal and affirmed, and the insurance company applies for certiorari or writ of review.

Wise Randolph & Rendall, for applicant.

Sidney Levy Herold, for respondents.

Clegg &amp Quintero and Philip Stephens Gidiere, amici curiae.

OPINION

NICHOLLS J.

The plaintiffs in this suit in the district court for Caddo parish brought suit against the defendant company, seeking to obtain a judgment against it in the sum of $ 738.91, alleging that they were the owners of the three-story brick building known as the "Simon Building" on lots Nos. 15 and 16, of block 32, of the city of Shreveport.

They averred: That on the 19th of December, 1905, through its agent, the defendant company issued to them, for the consideration of $ 22.25, a policy of insurance on said building for the sum of $ 1,500. That under the laws of Louisiana the defendant company, by the issuing of said policy, agreed and was legally bound in the event of damage by fire to said building to pay them such proportion of the loss as the amount of said policy should bear to the total insurance on said building.

That in May, 1906, said building was partially destroyed by fire without their fault, and that the damage done said building was estimated and appraised by experts chosen by the defendant and by the plaintiffs at $ 10,154.40, which said sum the agents and adjusters of defendant company admitted to be the loss on the building.

That the total amount of insurance held by them on the building was $ 20,600, and that the amount due them by defendant, under their policy was the said sum of $ 738.91. They averred that they had complied with all their legal obligations under said policy, but that the defendant refused to pay the amount due, and refused to furnish proofs of loss or to make any settlement with them, except on their complying with certain illegal exactions demanded of them by it.

In view of the premises, they prayed for citation of defendant and for judgment for the amount stated.

The defendant answered. It admitted having issued the policy annexed to plaintiffs' petition, but denied that they (plaintiffs) had complied with any of the requirements upon them as a condition precedent to instituting suit and requiring judgment, and particularly denied that within 60 days after the fire plaintiffs rendered statement to it signed and sworn to by the assured, stating the knowledge and belief of the assured as to the time and origin of the fire, the interest of the assured and of all others in the property, the cash value of the property and the amount of loss thereon, all other insurances covering the same property, etc., as required by said policy, and hence the suit should be dismissed.

In the event that the foregoing plea should not be maintained, then, in the alternative, it alleged: That the policy contains a specific clause as follows:

"It is a part of the consideration of this policy and the basis upon which the rate of premium is fixed, that the assured shall maintain insurance on each item of property insured by this policy of not less than 75 per cent. of the actual cash value thereof and that failing so to do the assured shall be an insurer to the extent of such deficit, and in that event shall bear his, her, or their proportion of the loss."

That the appraised valuation of said property was $ 33,862.96. That the appraised loss or damage on the property was $ 10,154.40. That the insurance required by the 75 per cent. co-insurance clause, as above stated, amounts to $ 25,397.22. That the plaintiff obtained insurance from other fire insurance companies on the said property to the amount of $ 20,600, which, under the stipulations of said policy, should pay to the plaintiffs $ 8,236.36, and the assured having become a co-insurer with the insurance companies who wrote policies on the said property to the amount of $ 4,797.22, and should pay on the said loss or damage $ 1,918.04. That the apportionment made between defendant and the co-insurers, including the plaintiffs herein, show a liability on the part of the defendant for the said loss and damage of $ 599.73. Defendant averred that it attached to its answer a particular detailed statement of same, and statement of the loss on the building. It averred that it had made a tender of said sum of $ 599.73, with all costs which have accrued up to date of tender which plaintiffs have refused to receive, and hence it prays that plaintiffs' demand may be reduced to said sum, and judgment rendered accordingly, with costs which accrued up to the date of the tender. It prayed for all decrees necessary for general and equitable relief.

Plaintiffs thereupon filed a rule on defendant to show cause why judgment for the amount tendered, with costs, should not be rendered against defendant. Defendant resisted plaintiffs' right to such judgment, unless in full settlement of demands for which tender was made.

The district court rendered judgment on this rule on the 28th of July in favor of the plaintiffs against the defendant for the sum of $ 606.93, being (the court declared) "the amount tendered by defendant."

The judgment further ordered and decreed that it (the judgment so rendered) should in no manner affect the right of plaintiffs to prosecute the suit further for the additional amount claimed by them, and that the right of the plaintiffs for the further prosecution thereof for such additional amount be, and the same are, fully reserved and the case continued open for such prosecution.

On the 31st of October, 1906, the district court rendered judgment in favor of the plaintiffs against the defendant for the sum of $ 738, with legal interest thereon, from June 19, 1906, less $ 606.90, for which (the court declared) "plaintiffs have already obtained judgment against defendant."

Defendant appealed to the Court of Appeal from both judgments, and for answer to the appeal plaintiffs prayed for damages for a frivolous appeal in the sum of 10 per cent. on the judgment.

On appeal the Court of Appeal used the following language:

"While it was proper to enter judgment against the defendant for the amount judicially admitted to be due, reserving their right to defend the suit for the balance in dispute, the judgment also condemning defendant also to pay all costs of the case while the real contest was still pending, was an error which this court will have to correct, and this relieves defendants from damages necessarily. The answer to the appeal does not authorize allowance of interest on the judgment, as the prayer is only for affirmance of the judgment with damages for frivolous appeal in the amount of 10 per cent. stated.

"The judgment appealed from should be reduced to the amount judicially admitted to be due, which is the sum of $ 599.73 and as thus amended the judgment in this issue in this case appealed from is affirmed. The lower court also rendered judgment on trial of the case for amount of the balance claimed as due by the defendants, and an appeal from the judgment by them brings up the main controversy in the litigation on the following allegations in defendant's answer: * * *

"'That the said policy contains a specific clause as follows: "It is a part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that the assured shall maintain insurance on each item of property insured by this policy of not less than 75 per cent. of the actual cost value thereof, and that failing so to do the assured shall be an insurer to the extent of such deficit, and in that event shall bear his, her, or their proportion of any loss; that the appraised valuation of the said property was $ 33,862.96; that the appraised loss or damage on the property was $ 10,154.40; that the insurance required by 75 per cent. co-insurance clauses as shown above stated amounts to $ 25,397.22; that the plaintiffs obtained insurance from the fire insurance companies on said property to the amount of $ 20,600, which, under the stipulations of said policy should pay to the plaintiffs $ 8,236.36, and the assured having become a co-insurer with the insurance companies who wrote policies on the same properties to the amount of $ 4,797.22, and should pay on the said loss or damage $ 1,918.04; that the apportionment made between the defendant and co-insurers, including plaintiffs herein, shows a liability on the part of the defendant for the said loss or damage of $ 599.73."'

"Which the plaintiffs insist is a violation of Act of 1900, p. 209, No. 135, entitled 'An act to fix the value of immovables by nature insured against loss or damage by fire, in case of loss or damage by fire.'

"'Section 1. That whenever any policy of insurance against loss by fire is hereafter written or rendered, on property * * * the value of the property is assessed by the insurer or as by him permitted to be assessed at the time of the issuance of the policy, shall be conclusively taken to be the true value of the property.

"'Sec. 2. That whenever * * * the said property shall be totally destroyed the full amount of the insurance on the property so destroyed shall be paid by the insurer and when the said property shall be partially damaged the insurer shall pay to the insured such amount as will permit the insured to restore the damaged property to its original condition.'

"There is nothing in the statute, to prevent co-insurance and it is usual in writing insurance for several...

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