Thuringia Ins. Co. v. Mallott

• Citation: 64 S.W. 991,111 Ky. 917
• Parties: THURINGIA INS. CO. v. MALLOTT. [1]
• Decision Date: 13 November 1901
• Court: Court of Appeals of Kentucky

64 S.W. 991

111 Ky. 917

THURINGIA INS. CO. v. MALLOTT. ^[1]

Court of Appeals of Kentucky.

November 13, 1901

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Action by Luella Mallott against the Thuringia Insurance Company on a policy of fire insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos W. Bullitt and Wm. Marshall Bullitt, for appellant.

Gardner & Moxley, for appellee.

O'REAR J.

Appellee's frame dwelling house was insured by appellant against loss or damage by fire. While so insured it sustained a damage which appellee contends was a total loss, but which appellant, on the contrary, insists was a partial loss only. Other questions were presented and tried out before the jury in the circuit court, but the verdict of the jury, there being no ground of complaint as to the instructions concerning them must be taken as conclusive. The sole question that we feel called upon to dispose of here, indeed the only one pressed upon us in argument, is the correctness of the trial court's instruction to the jury defining the term "total loss," as used in section 700 of Kentucky Statutes. That section is as follows: "Liability of Company for Value of Property as Fixed in Policy. That insurance companies that take fire or storm risks on real property in this commonwealth, shall, on all policies after this act takes effect (in case of total loss thereof by fire or storm), be liable for the full estimated value of the property insured, as the value thereof is fixed in the face of the policy; and in cases of partial loss of the property insured, the liability of the company shall not exceed the actual loss of the party insured." After the trial of this case and after this appeal had been prosecuted, this court had before it the case of Palatine Ins. Co. v Weiss, 59 S.W. 509. We then construed the section of the statute supra, and approved an instruction given by the same court defining "total loss" that was substantially in the language of the one given in this case, though this instruction differs in a particular which will be hereafter noted. The instruction given in this case was as follows "By 'total loss' or 'totally destroyed,' as used in these instructions, is not necessarily meant a reduction to ashes, or complete destruction of the property or building, but such injury or damage by fire to the building of the plaintiff as to destroy its identity and specific character as a building, or such injury or damage to all the parts and materials of said buildings as to render the same unsafe, or without value, as the same remained after the fire, for the purpose of reconstructing the building substantially as it existed before it was burned." Learned counsel for appellant insist that the instruction just quoted goes beyond what we held in Palatine Ins. Co. v. Weiss, supra, and further argue, with much earnestness and evidence of zealous investigation and preparation, that the rule laid down in the Palatine Case above was not fully sustained by the authorities upon which it was based, and that, as the court did not express other and independent reasons therefor, the rule there announced should be modified. We have carefully re-examined the authorities cited in the opinion and others, and have, upon reconsideration of the reasons underlying the rule and construction given, concluded that it is sustained by both precedent and reason.

What is the contract of insurance? What does it insure? It is, as is universally held, an indemnity against loss to the property owner; but an indemnity against loss of what? An examination of the standard contracts of insurance at once shows that the thing insured is the building or structure as such, and not the materials of which it is composed. We find in all or nearly all of such contracts a provision that if the building should fall before, and not caused by, fire, and then be consumed by fire, the contract does not cover such loss. Therefore it is not the material that is insured as such against loss or damage by fire, but it is the structure. Nave v. Insurance Co., 37 Mo. 430, 90 Am.Dec. 394. Of course, the structure or building can neither be destroyed nor damaged unless some or all of the material composing it is burned. There would be no argument in this case if the fire had destroyed all the material in the building. All the material was not destroyed. The foundation and the chimneys were not destroyed. Certain walls were not totally destroyed, though more or less damaged or impaired. Certain floors and joists were not totally destroyed, though damaged. It is argued, and it is true, that the statute recognizes that there may be a partial loss of the building instead of a total one. So there may be, and in such event the damages actually sustained only can be recovered. The mind can easily imagine examples of such partial loss, and about these there would be no argument. The difficulty arises where the loss is so great that it appears to go beyond one that is partial, and to come probably within one that is total. The nearer the dividing line between the two, the greater is the difficulty to determine the fact. Yet each case must fall within the one or the other of the list. What we are expected to do, and asked to do, is to lay down the general rule by which this classification can be made by the juries according to the facts in the particular case. In Palatine Ins. Co. v. Weiss, supra, we said: "It is the opinion of the court that the words 'total loss,' when applied to a building, do not mean that the materials of which the building was...