Stevens v. Norwich Union Fire Insurance Company

• Decision Date: 09 July 1906
• Citation: 96 S.W. 684,120 Mo.App. 88
• Parties: STEVENS, Respondent, v. NORWICH UNION FIRE INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

96 S.W. 684

120 Mo.App. 88

STEVENS, Respondent, v. NORWICH UNION FIRE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 9, 1906

[Copyrighted Material Omitted]

Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.--This is a suit on a policy of fire insurance issued by the defendant insurance company in favor of the plaintiff covering a frame residence and household goods therein owned and occupied by him in the city of West Plains. In so far as material to the questions involved in the present controversy, the policy in suit is as follows:

"Norwich Union Fire Insurance Society in consideration of $ 20.70 premium and the conditions and stipulations herein contained does hereby insure A. J. Stevens against loss or damage by fire from noon of the 2d day of December, 1904, to noon of the 2d day of December, 1907, as follows:

"Nine hundred dollars on one and one-half story shingle roof frame building and additions attached thereto, while occupied as a private dwelling-house, including all permanent fixtures and decorations and to include window and door screens, storm doors and awnings, while contained in or attached to said buildings, situate on lot 2, block 12, Howell's addition West Plains, Missouri.

"Six hundred dollars on household furniture, useful and ornamental, mirrors, beds, bedding, linen, family wearing apparel, watches and jewelry (in use), printed books and music, silver plate and plated ware, pictures, paintings, engravings and their frames (at not exceeding cost), sewing machines, musical instruments, fuel and family stores, trunks, satchels, canes, umbrellas and bric-a-brac, while contained therein.

"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 or 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 they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the article at such ascertained or appraised value, and also to repair, rebuild or replace the property lost or damaged with other of like kind and quality within a reasonable time on given notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described.

"In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss; stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.

"And the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required."

The petition is in the usual form, alleges a total destruction by fire of the property insured and the full performance by the plaintiff of all conditions of the policy on his part. The answer admits the issuance of the policy and a loss by fire thereunder, and among other things, specifically denies that the dwelling house was wholly destroyed, and affirmatively pleads the condition of the policy quoted, which provides, in effect, that in event of loss and disagreement between the parties as to the amount thereof, the same shall be ascertained by competent appraisers, etc. It avers that after the fire, a disagreement arose between plaintiff and defendant with respect to the amount of the loss on both the building and household goods, so that an appraisal thereof was required and that no such ascertainment of the loss by appraisal has been had, and that therefore plaintiff is not entitled to recover. It further denies every allegation in the petition contained which was not expressly admitted to be true. The reply is a general denial. The proposition advanced by the plaintiff and upon which he predicates his suit is that the loss was total on both the residence and contents; or, in other words, that the property, both real and personal, was wholly destroyed within the meaning of the statute and therefore the condition of the policy with respect to arbitration does not apply, while the counter-proposition advanced by the insurance company is that the loss was partial only on both the residence and household goods and therefore the arbitration agreement in the policy does apply and operates as a condition precedent to plaintiff's right; and the plaintiff, having failed to comply with this condition, no recovery can be had.

Aside from the facts that the plaintiff owned the property and held defendant's policy of insurance thereon, containing the arbitration condition mentioned, the facts on the part of the plaintiff tended to prove that while the policy was in full force and effect, the building was discovered to be on fire during the night of March 19, 1905, which fire totally destroyed a portion of the building, an ell thereof, at least, and so burned between the weatherboarding and walls, and between the ceiling and floors and under the shingles on the roof and in several of the rooms, as to totally destroy the identity of the same as a building, to such an extent that it is doubtful whether a prudent man, without insurance, desiring a building of like kind, would attempt to reinstate the same without first dismembering it. Whether the building was totally destroyed within the meaning of the law is an important question in the controversy, however, and therefore a few excerpts from the record will be given.

After much evidence tending to show that the fire ran through the house, some between the walls and weatherboarding, between the ceilings and floors, and under the shingles, some of plaintiff's witnesses said in part as follows. The chief of the fire department testified:

"The alarm was not turned in until the house was past redemption. When we got there the whole house was afire; the back part of the building had burned down and the main front part of the building was afire inside of the rooms between the ceiling and weatherboarding, where it was hard for us to get to it, and right on the front in one place it was just seeping out and the fire was between the ceiling and the roof and the weatherboarding on the main part of the building at the top.

"Q. State if the fire was running through the rooms in the main part of the building. A. It was. It was quite a while before we could get to it; we had to put out the fire in the upper rooms.

"Q. How did you manage to put it out? A. We had to get in where we could turn the stream between the ceiling and the weatherboarding.

"Q. Do you remember anything of the fire between the floor of the upper rooms and the ceiling of the lower floor? A. Yes, sir; we cut a hole in one place to get the water to it. . . . I think we cut the hole in the west room."

Mr. Traxler, a carpenter, testified as follows:

"The southern part of the house was all ruined, and the south half of the front of the house and top of the roof was all burned, a hole was burned out of the west end; I don't remember of any hole being burned out of the east end. . . .

"Q. Could the main building be repaired and made as good as it was before the fire? A. I don't know about that."

Mr. Weston, a carpenter, said:

"It is pretty well burned up except the main part of the building in front; some parts of that is fairly good yet.

"Q. What condition was it in? A. It was damaged by smoke and water and one place in front the smoke and some fire come through right at the gable end.

"Q. Could the main part of that be used in rebuilding the house, and if so, in what way? A. Some parts of it might be used in rebuilding.

"Q. In what way? A. In tearing it down some might be found that could be used again."

On cross-examination, he was asked:

"And you say none of it could be used again?" And he answered: "I would not use it again."

Mr. Goacher, a carpenter, testified as follows:

"State to the jury what condition it was in, if you can. A. It was very near all burned up; some of it is there yet.

"Q. How much of it, if any, could be used in rebuilding the house? A. Not very much; some of it could be used.

"Q. How would you do it, by tearing it down or leaving it standing? A. By tearing it down. It is not fit to build to."

On cross-examination he was asked the following question.

"Q. Why is the front not fit to build to? A. It was all afire inside. . . . It looked like the house was on fire all over. "

The evidence further tended to show that members of the fire department cut several holes through the roof and...