32 N.Y.S. 1059 | N.Y. Sup. Ct. | 1895
Upon the trial the plaintiff insisted that the building as a building had ceased to exist by reason of the ñre, and that in consequence the insurance company was liable. On the other hand, the defendant contended that because the building was worth a large sum, and a considerably smaller sum was expended in restoration, it was not liable because there was not total destruction; and again upon this appeal the defendant insists that the contract of insurance was enforceable only in the event of the “total destruction” of the premises, and that upon the evidence no total destruction, within the meaning of the policy, was shown; that the only destruction was to the roof and the interior woodwork; that the foundations and the brick walls at the side and rear remained in place and were in fact used without rebuilding; that the iron front was used, with repairs only at the top; and that as to the lintels and sills only about one-half were replaced. In addition to this summary of the extent of the loss, the strongest showing made by defendant was that the building was restored and put in complete repair at a cost of about one-third of the sound value of the building at the time of the fire. If this last proposition had been so conclusively established as to make it a question of law, it would be difficult to evade the conclusion that the weight of evidence was against the verdict, which, in effect, found that there was a total destruction of the building. But while there can be no question as to what it cost to repair, because the repairs were made and the money paid, there is room for different inferences as to what was the sound value of the building prior to the fire. Three of the four witnesses examined on the part of the defendant did not see the building until after the fire, and the fourth testified that he did not estimate the total value of the building before the fire; and, as to their knowledge of the value of the material destroyed, their testimony in this respect was to some extent weakened upon cross-examination by the fact that as to some of these witnesses they were not speaking of their own knowledge, but based their estimate upon information received from subcontractors and iron men; and against the estimates thus furnished, as to the sound value of the building before the fire as compared with what it cost to restore it, we have other witnesses for the defendant who furnish us a statement of the injury done to the building. They stated that it was necessary, to put on a new roof; to remove the whole interior of the building, with hardly an exception; that the reconstruction began at the ground, and ran up to the roof. The evidence, therefore, proved
The appellant insists that the evidence was not open to debatable presumptions or doubtful inferences; that the plaintiff had not made out a case for the enforcement of his contract, and the court should have held as matter of law that there was no total destruction; that all that was shown was untenantability; and that there was no warrant for submitting the question of total destruction as one of fact, under the circumstances of this case, to the jury. On the other hand, the plaintiff insists that it was a question of fact, upon the evidence, as to whether the building, as a building, had ceased to exist by reason of the fire; that, while the standing walls or a structure remained, this is not a “building,” in the ordinary "acceptation of that term; that within the intent of the lease and of the policy,' when there was a destruction, not of the structure, but of the building as a building, then the loss was one covered by the policy. “Actual ‘total loss,’ as applicable to a building, means, not that its materials were utterly destroyed, but that the building, though part of it remains standing, has lost its identity and specific character as a building, and instead has become a broken mass, or cannot longer properly be designated as a ‘building.’ Absolute extinction is not meant. ‘Wholly destroyed’ may be an equivalent expression.” And. Law Dict. 639. “A ‘total loss’ does not mean an absolute extinction, but only a destruction of a thing in the character in which it is insured. If a building ceases by fire to be such, losing its identity and character as a building, the whole sum insured is due, although the materials may not have been absolutely destroyed.” May, Ins. § 421a. “A loss is ‘total,’ within the meaning of the term, when the identity and specific character of the thing insured is destroyed, although there is not an absolute extinction of all its parts.” Wood, Ins. § 107. “A burned building is a ‘total loss’ when it ceases for all practical purposes to be a building, although some of its component .elements remain.” Bid. Ins. § 1375. While we are referred to no decision of our court of appeals, we have, by way of illustration and argument from other states, the cases of Williams v. Insurance Co., 54 Cal. 450, and Huck v. Insurance Co., 127 Mass. 306, in the former of which the court approved a charge to the jury which was in the following words:
“A ‘total loss’ does not mean an absolute extinction. The question is not whether all the parts and materials composing the building are absolutely or physically destroyed, but whether, after the fire, the thing insured still exists as a building. Although you may find the fact that after the fire a large portion of the four walls was left standing, and some of the ironwork still attached thereto, still, if you find that the fact is that the building has lost its identity and specific character as a building, you may find that the property was totally destroyed, within the meaning of the policy.”
“Of the building forming the eastern half of the block, the roof and the whole interior, with all the floors and divisions thereof, had fallen, and nothing remained standing but the outer walls and the elevator, constituting a mere shell or ruin, and not a standing building, in any proper sense.”
While it will be conceded that after the fire there was left a structure, the question is whether such structure constituted a building. Upon the evidence we do not think the court erred in refusing to determine this as a question of law. There was sufficient to go to the jury upon the question of whether the building “had lost its identity and specific character as a building.” If it had, then there was a total destruction, within the meaning and intent of the parties and the policy. It is true there was no evidence to show that there was a total destruction of the component parts and material that made up the building; but there was evidence tending to show a total destruction of the building as a building, and it was this that was the subject-matter of the insurance.
In regard to rulings upon evidence, the defendant, on cross-examination of one of plaintiff’s witnesses, asked him if the building was totally destroyed, as understood in building. A like question" was put to one of defendant’s witnesses. The objection to these, calling, as they did, for a conclusion, was properly sustained.
The only other question arises upon assigned errors in the charge of the court to the jury. Defendant requested the court to charge that:
“There is not sufficient evidence as to the value of plaintiff’s lease, as there is no evidence of the estimated cost of repairs which the plaintiff expressly covenanted to make during his term, or of the annual water charges which he agreed to pay, and the jury cannot find a verdict for substantial damages against the defendant”
This was asked also in another form, whereby the court was requested to charge that:
“From the amount which the plaintiff might save annually in rent under his lease must be deducted the payments which the plaintiff would be required to make under- his lease, and there is no proof as to what such payments would be.”
By the terms of the lease, the plaintiff was only obliged to make such repairs as he might deem necessary, and, the evidence showing that the building was in good tenantable condition at the time of the fire, it would be the purest speculation and conjecture to estimate upon what might be the possible, or even probable, repairs that the plaintiff might think necessary to make in the future. It is true that, in addition to this, the lease required the plaintiff to pay the water rates imposed upon the premises, and the amount of these should have been given. But, considering the uses to which the premises were put, we have some knowledge, as the jury undoubtedly possessed, of what the charges fori water rates on such premises would be; and the only evidence as to the value of the lease being that offered by the plaintiff, from which it could be inferred that the unexpired portion of the lease was worth over $30,000, upon which there was an insurance of but $20,000, the fail
