Zalk & Josephs Realty Company v. Stuyvesant Insurance Company
| Decision Date | 23 February 1934 |
| Docket Number | 29,735 |
| Citation | 253 N.W. 8,191 Minn. 60 |
| Parties | ZALK & JOSEPHS REALTY COMPANY AND ANOTHER v. STUYVESANT INSURANCE COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover on a $1,000 policy of fire insurance issued by defendant to plaintiffs. A total of $5,000 insurance, including that of defendant's policy, was carried on the property under Minnesota standard policies, which fixed that amount as the insurable value of the property. The case was tried before Bert Fesler, Judge, who awarded plaintiffs recovery for $299.39, which represented defendant's proportionate share of the actual fire loss, fixed at $1,496.94. Plaintiffs appealed from an order denying their motion for a new trial. Their contention is that they are entitled to recovery as for a total loss. Reversed with directions.
Municipal corporation -- building code -- permit to repair.
1. (a) The refusal of the building inspector to permit repair of a building, damaged by fire and deterioration to the extent of more than 50 per cent of a similar new building, rested upon a sufficient fact basis, as shown by the undisputed facts.
Municipal corporation -- building code -- permit to repair.
(b) The building inspector, an administrative officer, was not required to make findings of fact where no statute or ordinance so required. If he erred in his opinion or conclusion as to the facts, there was adequate remedy by appeal or other proceeding.
Municipal corporation -- ordinance -- building code -- validity.
(c) The ordinance under which he acted was not invalid because it authorized him to refuse a permit when, in his "opinion," the building was damaged to the extent stated, instead of using the word "judgment" or the word "conclusion."
Municipal -- ordinance -- building code -- reasonableness.
2. The ordinance in question, in reference to frame buildings located within the fire limits of a city of the first class is not unreasonable or arbitrary.
Municipal corporation -- ordinance -- building -- conflicting provisions.
3. The ordinance section in question does not conflict with other related sections of the same ordinance or with the state statute prescribing the powers and duties of the state fire marshal.
Municipal corporation -- ordinance -- building code -- certainty of language used.
4. The language of the ordinance section here in question, quoted in the opinion, is not indefinite or uncertain.
Constitution -- due process of law.
5. (a) Due process of law is satisfied when an opportunity is afforded to invoke the equal protection of the law by judicial proceeding appropriate for the purpose and adequate to secure the end and object sought to be obtained.
Constitution -- due process of law.
(b) The defendant had not right to appeal, to bring suit to test the validity of the ordinance, or to wait, as it did, until action was brought against it, and then defend on any and all grounds of invalidity of the ordinance.
Municipal corporation -- delegation of legislative power.
6. No delegation of legislative power to the building inspector is shown.
Municipal corporation -- ordinance -- building code -- construction.
7. The ordinance section in question cannot be so construed as to apply only in case the 50 per cent damage to the building is the result of one single cause or of the last fire in the building.
Municipal corporation -- ordinance -- building code -- construction.
8. The ordinance section should receive a reasonably strict construction, but, where the facts are undisputed and the provisions of the ordinance are unambiguous and stated in clear language, we cannot, by construction, change its terms or the result of its application to the facts.
Insurance -- total loss.
9. The plaintiffs are entitled to recover on their insurance policy as for a total loss of the building.
Insurance -- total loss -- evidence.
Municipal corporation -- ordinance -- building code -- validity -- evidence.
10. The undisputed facts do not sustain the trial court's finding that the building was not damaged or deteriorated from any cause to the extent of more than 50 per cent of a similar new building, or the finding that the ordinance section is void.
Abbott MacPherran, Dancer, Gilbert & Doan, for appellants.
George H. Spear, for respondent.
Plaintiffs appeal from an order denying their motion for a new trial.
The action is one to recover upon a fire insurance policy against loss or damage by fire issued by defendant to these plaintiffs. The policy is in the amount of $1,000 upon a two-story, frame building, used for mercantile and lodging purposes, located within the fire limits of the city of Duluth. The insurance was for the term of one year, commencing May 27, 1931. There was, including defendant's policy, a total of $5,000 insurance on the building under Minnesota standard policies, and the policies fixed that sum as the insurable value of the building. On March 16, 1932, the building was damaged by fire. The actual fire loss thereon by that fire was $1,496.94, and the building could have been repaired for that sum. The building was old, having been built some 40 years ago. It had been damaged by one previous fire and had deteriorated in value by reason of time, usage, and fire.
Shortly after the fire of March 16, 1932, plaintiffs, or a building contractor on their behalf, applied to the building inspector of the city for a permit to repair the building. The inspector, acting under § 419 of ordinance No. 1126 of the city, known as the building code, refused to permit the building to be repaired, and, by letter, notified the plaintiffs that in his opinion, because of previous fires and deterioration and the fire of March 16, the building was in such condition that under the section of the ordinance noted permission to repair could not be granted. In the same letter he ordered plaintiffs to tear down and remove the building from the premises within 30 days. The letter was received by plaintiffs on the date written. Plaintiffs complied with the order and tore down and removed the building. They then sued each of the insurance companies for the full amount of each policy, as for a total loss of the building by fire. The trial court, hearing the cases involving all of the insurance, without a jury, awarded recovery by plaintiffs against this defendant for one-fifth of the actual fire loss of $1,496.94 and no more, this defendant carrying one-fifth of the total insurance.
Section 419 of the building code ordinance reads as follows:
"(a) It shall be unlawful to repair or alter any frame or brick veneered building located within the Fire Limits if, in the opinion of the Building Inspector, such building has been damaged or deteriorated from any cause to the extent of more than fifty (50) per cent of a similar new building, and all such buildings so damaged or deteriorated shall be torn down and removed when so ordered by the Building Inspector."
1. The trial court found that this section of the ordinance was void, and hence the building inspector had no right or authority to refuse a permit to repair, or to order the building torn down and removed. The validity of this section of the ordinance presents an important question for review. Its validity is attacked on several grounds. It is contended that the opinion of the building inspector was not a sufficient basis for his order; that a fact basis for such order was required. We agree that a fact basis for the order was required. The ordinance itself requires a fact basis for action by the inspector. If he errs in his judgment or conclusion as to the facts, there is adequate remedy by appeal or other proceeding, as hereinafter specified. But the inspector was not required to make findings of fact, and the evidence and findings of the court show that there was a sufficient fact basis. The building inspector's order recites that he inspected the building the day after the fire and that, because of previous fires and deterioration from all causes, it was his opinion that under the section of the ordinance the building should not be repaired but should be torn down. The court found that at the time of the fire a similar new building would have been of the value of $7,776; that the old building, as it stood immediately before the fire, was of the value of $3,888; and that the fire damage on March 16, 1932, amounted to $1,496.94. The court made no express finding as to the value of the building after the fire. But the necessary result follows that the building then had a value of only about $2,391, which brought it well within the provisions of § 419, making it unlawful to repair any frame building within the fire limits which has been damaged or deteriorated from any cause to the extent that this building was damaged and deteriorated.
2. Was the ordinance unreasonable and arbitrary so as to be invalid on that ground? The court found, as we have stated, what the cost of repairing the building would be, and further found that after the fire the building was uninhabitable and unfit for occupancy without repairs. It follows that the building in the condition it was left after the fire had no value unless it could lawfully be repaired. The question, then, is whether an ordinance prohibiting the repair of such a building located within the fire limits is so unreasonable and arbitrary as to invalidate such an ordinance, adopted by the city council, under its police power, for the prevention of fires and for public safety. It is unquestioned that the city, by ordinance, had power to establish fire limits and to regulate the kind of material and fire safeguards to be used in construction of new...
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