114 Neb. 194 | Neb. | 1925
This is an action prosecuted by the plaintiff, Calnon, against the defendant Fidelity-Phen'ix Fire Insurance Company upon two policies of fire insurance aggregating $12,000 issued by defendant, covering an elevator building and fixtures therein owned by plaintiff. The amended petition upon which the action was tried is in usual form. The amended answer of the defendant thereto, so far as material to the consideration of this case, after admitting certain facts, alleges that the Union Pacific Railroad Company was the owner of the ground upon which said elevator
The verdict of the jury for the purpose of this case conclusively determined the fact that the building destroyed was not destroyed by fire which originated through the act, design, procurement, or criminal fault on the part of the plaintiff.
The fundamental question that is presented by this case is whether the subject-matter of the insurance was “real property” or “personal property.” The court below tried the case on the theory that the property insured was real property. There is no dispute about the physical facts. The building was of the common, small town type of grain
Section 7809, Comp. St. 1922, provides:
“Whenever any policy of insurance shall be written to insure any real property in this state against loss by fire, tornado or lightning, and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or his assignee, the amount of the insurance written in such policy shall be taken conclusively to be the true value of the property insured and the true amount of loss and measure of damages.”
This act is remedial in character. To ascertain and enforce the intent of the legislature is admittedly a cardinal rule in the construction of the statutes. In determining the question of legislative intent, reference may be had to the occasion and necessity of the law, and the words of the act may be interpreted in the light of the general object of the statute. In other words, in construing the provision before! us, the court will give consideration to its policy, to the mischief to be remedied, and give it such an interpretation as appears best calculated to advance its objects by not effectuating the design of the legislature. Gran v. Houston, 45 Neb. 813; Buckmaster v. McElroy, 20 Neb. 557; McIntosh v. Johnson, 51 Neb. 33. Indeed, in the Buck-master case, above cited, Judge Cobb cited approvingly the case of Dean and Chapter of St. Peter, York, v. Middleborough, 2 Y. & J. (Eng.) * 196, to thé effect that — “It is by no means unusual in construing a remedial statute to extend the enacting words beyond their natural import and effect,
The statutory language which we are seeking to construe in the instant case is the term “any real property.” Is its meaning (1) the thing corporeal, or (2) the estate or interest which one may have therein ? The language employed in the policies in suit in express terms, describe as the subject of insurance “the thing corporeal,” the elevator. The defendant, however, cites 22 R. C. L. 65, sec. 40, which is as follows:
“Where a person erects buildings on leased premises under an agreement in the lease that he may remove them, or places machinery in buildings under a similar agreement, the buildings and machinery follow the term and partake of its character as a chattel real. A term for years while denominated a chattel real is not, when speaking with legal accuracy, considered real estate, but on the contrary it is personal property, whatever might be its duration in years, whether for one or twenty, or ninety-nine years.”
A consideration of the above citations leads to the conclusion that the author has in mind rather the quantity and quality of the estate which is possessed in the land to the exclusion of the land itself. And it would seem that a house permanently fixed and immovable, though leased for 99 years, would be as much, if not more, within the policy of the Nebraska act than a freehold of which the same house formed a part, but which was limited for the life of the possessor, which in the natural order of things will terminate within a decade. It thus becomes necessary to determine the purpose of the words “any real property” used in the Nebraska statute in view of its remedial character and especially in view of the manifest policy therein indicated.
“What reason existed at the time of the adoption of the valued policy law to induce the legislature to segregate insurers of real estate from other litigants and to subject them to burdens from which other unsuccessful suitors are exempt? The reason is not far to seek. It is a matter of eommon knowledge that corporations engaged in the business of insuring real estate have been long accustomed to vexatiously and oppressively resisting payment of claims arising under their policies. The reports of this court bear abundant evidence to the fact that no other class of litigants has so persistently endeavored to escape liability from*200 their contract obligations by interposing technical and unconscionable defenses to actions instituted against them.”
From the nature of the situation' the attention of the legislators was directed primarily to things real, that is, such things as are permanent, fixed, and immovable, and therefore it is in the sense of the things corporeal in which the words “any real property” are to be considered as used in the statute. It is to be noted that the word “any” is employed in this connection. This word implies unlimited choice as to the particular unit, number, or quantity. It follows that the words “any real property” are perfectly ample and cover and include “real estate” or “real property” as may be defined by common law or by statute duly passed.
Section 5809, Comp. St. 1922, reads as follows: “The term ‘real property,’ or ‘real estate’ and ‘lands,’ when used in this act, except as otherwise provided, shall include * * * all buildings, fixtures, improvements, * * * and privileges pertaining thereto.”
Section 5586, Cómp. St. 1922, reads as follows: “The term ‘real estate,’ as used in this chapter, shall be construed as coextensive in meaning with ‘lands, tenements and hereditaments,’ and as embracing all chattels real, except leases for a term not exceeding one year.”
The chapter referred to in the last section is the chapter on real property, governing definitions, conveyances, occupying claimants, actions to quiet title, escheats, abstracters, Torrens system, and miscellaneous provisions. These provisions construed with the term “any real estate” as set forth in the valued policy act plainly indicate that under the law of Nebraska the elevator in controversy in this suit must be held to be real property, for it is plainly within the express words of the act itself. It is a remedial statute, and the construction given is demanded by the policy of the act, as well as by the mischief sought to be remedied. It is the only construction which can be given it which effectuates the design of the legislature. It is not even necessary in so doing that the words of this
''But it is insisted that here the house was personal property, and is excluded by the terms of the statute. Personal, in its general sense, means simply movable, transitory; personal property, that which may be carried about with the person. It has reference to the real character of the property, and not to the title by which it is held. In this sense, a dwelling-house is not embraced within- the meaning of the term personal property. To give the statutory term its general signification, the object of the statute will be accomplished; to give its technical legal sense, the evil intended to be remedied will in part still prevail, and without any good reason to support it. We are of opinion that the statute should be construed to embrace houses, without reference to the question of the fee simple title to the land.”
True, appellant cites in support of his" position the cases of Sharp v. Niagara Fire Ins. Co., 164 Mo. App. 475, and Millis v. Scottish Union & Nat. Ins. Co., 95 Mo. App. 211. It is to be observed that the cases cited are from the intermediate court of appeals of Missouri, and the decisions are not in accord with the manifest spirit of the enactment under consideration in this case.
The defendant, as further ground for reversal, insists that because of a certain unfinished transaction, having in view the ultimate execution of a chattel mortgage by the assured to the American State Bank or its receiver, to cover the property in question, the same must be deemed to have been mortgaged to secure the payment of the sum of $10,000 and that thereby the insurance was invalidated. He cites Madsen v. Farmers & Merchants Ins. Co., 87 Neb. 107, as sustaining his contention. In the case cited by de
“Under the statutes of Nebraska, the violation of a condition in a fire insurance policy by the mortgaging of insured chattels does not invalidate the insurance, unless the breach of contract contributes to the loss. Rev. St. 1913, sec. 3187.”
Assuming, but not deciding, that the effect of the transaction referred to by defendant was to create a chattel mortgage, it is not alleged in defendant’s amended answer that the breach of contract on the part of the assured in any manner contributed to the loss, nor is there any evidence in the record, especially in view of the verdict of the jury, which would in any manner sustain such an allegation, had it been, made. It therefore follows that this objection cannot be sustained.
The determination that the property in suit was, under the provisions of the valued policy law of Nebraska, real estate sustains plaintiff’s right to have a reasonable attorney’s fee taxed for his benefit. As to the amount of the attorney's fee allowed, the transcript discloses that on January 5, 1923, hearing was had on motion and evidence taken on question of attorney’s fee. This evidence is not preserved in the bill of exceptions. This omission would of itself necessarily preclude a review by this court of the question of the reasonableness of the amount allowed. It appears, however, that It does not exceed 10 per cent, of the total recovery, exclusive of interest. Such an allowance, in view of the facts in this record, is not deemed excessive.
For the reasons stated the judgment entered in this cause in favor of the plaintiff for the sum of $12,000 and at-, torney’s fees in the sum of $1,200 is affirmed subject to be corrected by the addition of $730.34 interest, and the
Affirmed in part, and reversed in part.
Note — See Fire Insurance, 26 C. J. secs. 307, 453.