Spickard v. Fire Association of Philadelphia

• Decision Date: 29 April 1912
• Citation: Spickard v. Fire Association of Philadelphia, 164 Mo. App. 1, 146 S. W. 808 (Kan. App. 1912)
• Parties: WILLIAM W. SPICKARD, Respondent v. FIRE ASSOCIATION OF PHILADELPHIA, Appellant
• Court: Kansas Court of Appeals

146 S.W. 808

164 Mo.App. 1

WILLIAM W. SPICKARD, Respondent v. FIRE ASSOCIATION OF PHILADELPHIA, Appellant

Court of Appeals of Missouri, Kansas City

April 29, 1912

Appeal from Clinton Circuit Court.--Hon. Alonzo D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

J. A Clark and Fyke & Snider for appellant.

E. J Smith and W. T. Herndon for respondent.

OPINION

ELLISON, J.

Plaintiff's action is based on a policy of fire insurance issued to him by defendant, in the sum of $ 1200 on his stock of general merchandise and fifty dollars on store furniture. The judgment in the trial court was for the plaintiff in the full amount of the policy.

The policy contained a provision that in the event of loss the company would "not be liable for a greater amount than three-fourths of the actual cash value of the property covered by the policy at the time of such 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. Total insurance permitted is hereby limited to three-fourths of the actual cash value of the property hereby covered, and to be concurrent herewith."

Defendant, by its answer, set up that clause, as a partial defense to the amount claimed by plaintiff. The defense was disallowed by the trial court, and that presents the principal question for decision.

The evidence showed that there were two other policies on the property, one for the exact amount of the one in suit, and taken on the same day. The other for $ 2400 on the stock and $ 100 on the furniture, taken on the 26th day of March, 1910. The fire occurred on the 1st day of April, 1910, causing a total loss of the property on hand at that time. These policies aggregate $ 5000. There was evidence in behalf of plaintiff, tending to prove that the value of the goods at the time of the fire, after allowing for sales and purchases, was $ 8000, and of the furniture was near $ 400. Defendant contends that under the terms of the policy as pleaded in its answer, its liability should be measured on a three-fourths value basis; and as there was other insurance, its liability on the policy in suit was its proportion of three-fourths.

Under repeated rulings of the different appellate courts of the state we must reject defendant's view and approve that taken by the trial court. By the terms of the statute (Sec. 7030, R. S. 1909) it is declared that "No company shall take a risk on any property in this state 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." This statute has been held to "enjoin upon the insurance company not to take a risk at more than three-fourths of the value of the property insured, but that when the value is fixed and the risk taken for a given amount, that sum cannot be questioned afterwards, though it should, in fact, be more than three-fourths of the value." [Gibson v. Mo. Town Mutual Ins. Co., 82 Mo.App. 515.] It was further held in that case that if between the date of insurance and the fire, the value should be lessened by an excess of sales over purchases in replenishing the stock, such decrease would of course, be deducted from the value; and so likewise would changes lessening the value, arising from other causes, between the issuance of the policy and the fire. And that view of the statute has been several times reasserted by this court. [Siegle v. Ins. Co., 107 Mo.App. 456, 81 S.W. 637; Hanna v. Ins. Co., 109 Mo.App. 152; Crossan v. Ins. Co., 133 Mo.App. 594, and in an opinion by the presiding judge in the recent case of Gragg v. Ins. Co., 132 Mo.App. 405, 111 S.W. 1184.] It was likewise approved by the St. Louis Court of Appeals in Howerton v. Ins. Co., 105 Mo.App. 575, 583, 80 S.W. 27, and Stevens v. Ins. Co., 120 Mo.App. 88, 105-108, where the question is fully considered by Judge NORTONI. It has also met the approval of the Springfield Court of Appeals in an opinion by presiding Judge NIXON in Hilburn v. Ins. Co., 140 Mo.App. 355, 368.

If defendant's insistence that it only contracted to insure for three-fourths of the actual value of the property, and should not be held for more, should be granted, it would not aid its case; for in making practical application of that fact, defendant leaves out of view that the sum named in the policy is only three-fourths of the actual value, or less. For, as we have just explained, the company could not insure for a sum in excess of that proportion.

So whenever the property is of the same value at the date of the fire that it was when the insurance was taken, the sum named in the policy is the measure of the insured's loss. And if it is claimed that the property was not so valuable at the date of the fire as it was when insured, the value at the time of insurance will be considered by force of the statute, as a sum of which the face of the policy is three-fourths and that will be the basis for calculation. And by subtracting the amount of depreciation from the total value at the date of insurance (being a sum of which the face of the policy is three-fourths) the remainder would represent the insured's loss. Thus, if the policy was for $ 3000 that would fix the value of the property at $ 4000, and if the depreciation was as much as $ 1000 that subtracted from the total value of $ 4000 would leave a loss to the owner of $ 3000, all of which he could recover. If the depreciation was $ 2000, that would leave the owner's loss at only $ 2000, and that would be the extent of his recovery. [Stevens v. Ins. Co., 120 Mo.App. 88, 106-108, 96 S.W. 684.]

If there are several policies the same rule of interpretation and basis of calculation obtains. The total value of the property will be considered to be a sum of which their aggregate amount is three-fourths. [Hanna v. Ins. Co., supra.]

At the argument stress was laid on the tendency to evil results said to be like to flow from the statute which we have discussed. In so doing the views of the Supreme Court on a...