Yorkshire Ins. Co., Limited v. Brewer

• Citation: 175 Miss. 538,166 So. 361
• Decision Date: 24 February 1936
• Docket Number: 32045
• Court: Mississippi Supreme Court
• Parties: YORKSHIRE INS. CO., LIMITED, et al. v. BREWER

166 So. 361

175 Miss. 538

YORKSHIRE INS. CO., LIMITED, et al. v. BREWER

No. 32045

Supreme Court of Mississippi

February 24, 1936

Division B

Suggestion Of Error Overruled, May 4, 1936.

APPEAL from the circuit court of Leflore county HON. S. F. DAVIS Judge.

Action by W. L. Brewer against the Yorkshire Insurance Company Limited, and another. From the judgment, defendants appeal. Affirmed.

Affirmed.

H. T. Odom, of Greenwood, and Watkins & Eager, of Jackson, for appellants.

The burden of proof was upon the plaintiff to establish by a preponderance of the evidence that the dwelling house was totally destroyed, under the provision of the valued policy statute, section 5183 of the 1930 Mississippi Code, because appellee introduced no evidence whatsoever as to the actual extent of the loss or damage, or that is to say, what it would cost to repair the building to its original condition, and, therefore, relied solely on the valued policy statute, with respect to the measure of damages.

Stevenson v. Y. & M. V. R. R. Co., 112 Miss. 899, 74 So. 132; Gentry v. Gulf & Ship Island R. R. Co., 109 Miss. 66, 67 So. 849; Mardis v. Y. & M. V. R. R. Co., 115 Miss. 734, 76 So. 640.

Any instruction predicated on the jury being "satisfied" requires too high a burden, and is prejudicial and reversible.

Moore v. Keinike, 119 Ala. 267, 24 So. 374; Lawrence v. Doe, 144 Ala. 524, 41 So. 612; Y. & M. V. R. R. v. Smith, 82 Miss. 656, 35 So. 168.

It is elementary that it is error to give contradictory or conflicting instructions.

Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842.

Conflicting and contradictory instructions are not cured by other instructions.

Solomon v. City Compress. 69 Miss. 319, 12 So. 339; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90.

Instructions to the jury that in coming to their conclusion they must "carefully consider the circumstances of the ease" are misleading, since the jury should consider the facts and circumstances of the case as shown in evidence.

Larkensville Mining Co. v. Flippo, 130 Ala. 361, 30 So. 358; Walls v. Decatur Fertilizer Co., 215 Ala. 426, 111 So. 214; Forbes Piano v. Reynolds, 1 Ala.App. 501, 56 So. 270; Monticello Plywood Box Co. v. Haney, 167 Miss. 622, 142 So. 497; Georgetown Mercantile Co. v. Steen, 155 Miss. 719, 125 So. 120.

The learned trial court erred in sustaining appellee's motion to strike appellants' notice under the general issue.

The learned trial court erred in refusing the instructions requested by each of the appellants separately directing the jury to return separate verdicts in favor of the appellee, and in the amounts theretofore ascertained by the appraisers, and as shown by the appraisal agreement identified and introduced in evidence.

Scottish Union & National Ins. v. Skaggs, 114 Miss. 618, 75 So. 437; Stout v. Garrard & Co., 128 Miss. 418, 91 So. 33.

The appellee's instruction No. 7 is in conflict with the statute, section 2067, Code of 1930, and the statute should be strictly construed and no exception ingrafted thereon by judicial construction.

Reith v. Ansley, 162 Miss. 886, 140 So. 521.

The trial court erred in permitting the jury to view the premises.

National Box Co. v. Bradley, 154 So. 724, 171 Miss. 15; 64 C. J., pages 88 and 89.

The learned trial court erred in admitting opinion evidence of non-expert witnesses to the effect that appellee's dwelling house was a total loss.

The learned trial court erroneously included four hundred twenty dollars as interest in the judgment.

Gardner, Denman & Everett, of Greenwood, for appellee.

A new trial will not be granted where it is apparent from the whole record that the verdict is right on the facts of the ease.

Hill v. Calvin, 4 H. 231; Pritehard v. Meyers, 11 S. & M. 169; Wiggins v. MeGimpsey, 13 S. & M. 532; Magee v. Harrington, 13 S. & M. 403; Baskins v. Winston, 24 Miss. 431; Simpson v Bowden, 23 Miss. 524; Brantley v. Carter, 26 Miss. 428; Dozier v. Ellis, 28 Miss. 730; Fore v. Williams, 35 Miss. 533; Cameron v. Watson, 40 Miss. 191.

By reference to the decision of this court, we find that the court lays down this rule, to be observed in the future in this sort of cases that, where there is a substantial part of the building remaining after the fire, there is not a total destruction. This court, in this decision, seems to follow the rule laid down by the Supreme Court of Minnesota in the case of Northwestern Mutual Life Insurance Co. v. Rochester German Ins. Co., 85 Minn. 48, 88 N.W. 265, 56 L. R. A. 108, in which that court, among other things, says, in speaking of the part of the building remaining after the fire: "In arriving at a determination of what a prudent owner would do under such circumstances, it is proper to consider not only the condition of the walls standing, whether they are suitable, in place, to be used as a part of the reconstruction, but, also, the relative value of such walls in place, as compared with the cost of rebuilding. It does not follow that, because some part of the remnants may be utilized in place, there is not substantial and total destruction and loss. The law will not take note of trifles in this respect. It follows that there must remain a substantial part of the building in place, which, with reasonable repairs, can be used in its reconstruction. What such substantial part is, is a question of fact, depending upon the nature and cost of the structure and the character and condition of the remaining parts."

To this, this court adds: "It only remains to be said that substantial parts of a building must remain in place, above the foundation, in order to prevent the destruction of the building from being total. If only the foundation of the building remains in place, the building is totally destroyed within the meaning of the policies, although some parts of the building remain in such condition as to be of value as salvage."

Scottish Union & Natl. Ins. Co. v. Warren Gee Lbr, Co., 118 Miss. 740, 80 So. 9; Smith v. Shelton, 132 Miss. 118; Supreme Court Rule 11, 101 Miss. 906, 59 So. IX.

Where there has been a view or inspection of the place or premises by the jury we cannot reverse on the evidence, if there be any substantial testimony, delivered by sworn witnesses in support of the verdict.

National Box Co. v. Bradley, 171 Miss. 16.

Verdicts which are responsive to the issue, and are erroneous only, as to the amount of damages, will not be revised by this court, unless there be a motion for a new trial in the court below overruled, and a bill of exceptions taken embodying the evidence.

Kelly v. Brown, 32 Miss. 202; 3 C. J. 988, sec. 910; Fellows v. Dorsey, 171 Mo.App. 289, 157 S.W. 995; 2 R. C. L. 98, sec. 72; St. L. & S. F. Ry. v. Bridges, 156 Miss. 206; Gulf, Mobile & N. R. Co. v. Jones, 155 Miss. 689.

A new trial will not be granted where it is apparent from the whole record that the verdict is right on the facts of the case.

Hill v. Calvin, 4 H. 231; Pritchard v. Meyers, 11 S. & M. 169; Wiggins v. MeGimpsey, 13 S. & M. 532; Magee v. Harrington, 13 S. & M. 403; Baskins v. Winston, 24 Miss. 431; Simpson v. Bowden, 23 Miss. 524; Brantlcy v. Carter, 26 Miss. 482; Dozier v. Ellis, 28 Miss. 730; Fore v. Williams, 35 Miss. 533; Cameron v. Watson, 40 Miss. 191; 1 Miss. Digest, page 152, sec. 1028.

This court will not reverse for errors in the rulings on pleadings, where the whole case has been developed by evidence, and it is manifest that a different result could not be reached.

Houston v. Smythe, 66 Miss. 118, 5 So. 520; Insurance Co. v. Jones, 49 Miss. 80; Germania Fire Ins. Co. v. Francis, 52 Miss. 457, 24 Am. Rep. 674; Alabama, etc., R. Co. v. Brooks, 69 Miss. 168, 13 So. 847; 1 Miss. Digest, page 153, sec. 1028.

Argued orally by Pat Eager, for appellant, and by A. F. Gardner, for appellee.

OPINION

Ethridge, P. J.

This is the second appeal in these cases, the decision in the former appeal being reported in Franklin Fire Ins. Co. v. Brewer, 159 So. 545. W. L. Brewer was the owner of a residence in Greenwood, Mississippi, and carried two policies of insurance, one in the Franklin Insurance Company and the other in the yorkshire Insurance Company. On the trial, the two cases were consolidated and tried together, the policies containing, substantially, the same provisions. On the remand of the cause to the court below the issue submitted to the jury was whether or not there was a total loss, or only a partial one, and there was evidence warranting the jury to find a total loss, if they believed the testimony in that regard.

The policy provided that the insurance company should not be liable beyond the actual cash value of the property at the time the loss occurred, with proper deduction for depreciation, and in no event should exceed what it would cost to repair or replace the building with like material. It further provided that if the insured and insurer differed in the appraisement, they should each select an appraiser, and the two so selected should select a competent and disinterested umpire, and that the award in writing of any two should determine the amount of such loss.

This clause of...