66 Tex. 103 | Tex. | 1886
The rights of the parties must depend on the character of the loss sustained while the policy issued on January 23 was in force. The thing insigred was a two-story frame ‘ ‘ building, ’ ’ on Main street, in the city of Dallas. By the term
The court below found that the effect of the fire which occurred the day after the policy was issued was to reduce the building to a condition as, follows: “The east wall of it was entirely destroyed. The roof was destroyed. Almost one-half of the interior of it (extending from the foot of the east wall to the top of the west wall) was destroyed. The front of it was partly lying on the street, and partly hanging, liable to fall at any time. Thus it had lost its specific character as a building, and was unfit for use as a hotel or for other purposes, and was a total loss—this loss being the combined result of the two fires.”
It is unimportant to what extent the building may have been injured by the former fire, which occurred on January 4,1884, while the property was covered by other policies; for settlement had been made in reference thereto, and those policies cancelled, and such irjury can have no bearing on the question of liability under policies subsequently issued.
When the policy sued upon was issued, the property may have been seriously injured by the fire which occurred before that time, but such was the condition of the property when the policy sued upon issued, that the appellant insured it as a building, and such, in the absence of averment and proof of fraud in procuring the policy, it must be held to have been at the time the policy issued. The question then is did fire so change the character of the thing insured, after the policy sued upon was issued, as to make a total loss of the building within the meaning of the contract of the parties ?
The court below found that the building was a total loss, and we are of the opinion that the facts stated in the finding justified that conclusion. It was the building that was insured—a specific thing, and not merely the material of which, it was constructed. In the case of Williams v. Hartford Ins. Co., 54 Cal., 450, the following charge was affirmed: “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
This we understand to be the true rule. Nave v. Insurance Co., 37 Mo., 430; Judah v. Randall, 2 Caines’ Cases, 324; Huck v. Insurance Co., 127 Mass., 309; Insurance Co. v. Fogarty, 19 Wall., 640; May on Insurance, 421a; Brady v. Insurance Co., 11 Mich., 446.
The fact that the court found that the total loss resulted from both fires cannot affect the liability of the makers of the policy in force at the time the total loss occurred. The fire which consummated the total loss did not occur until after the policy sued upon was issued; and the defective condition of the building, brought about and existing through the former fire, can no more be taken into the estimate in determining the cause of the total loss than could any other character of defect in the building existing at the time the last policy issued, and not of a nature to defeat the policy, but calculated, from its character, to make total loss from fire thereafter more easily accomplished. The maker of the policy cannot call to its aid the injury done by the former fire to make a loss subsequently resulting from fire only partial, which, in fact, through the latter fire only, became total.
The loss insured against was the loss to the building as it was at the time the policy sued upon issued, or as the building might be subsequently bettered, and its former condition could not be looked to for the purpose of determining the character of the loss, and the court might well have rested its holding that the building was a total loss from the last fire upon the specific facts found to be true. The court, however, as will be seen from the conclusions of fact and law, based the total loss on both fires and the ordinance of the city which prohibited the rebuilding or repairing of wooden houses, within the fire limits, which might be damaged to the extent of one-third of their value by fire.
The fifteenth conclusion of fact was : “That considered with reference to condition of the building at the time the second insurance was effected, the loss in this case was not a total one, although the loss occasioned by both fires and under the ordinances of the city preventing repairs to a building that has been damaged thirty-three and one-third per cent, of its value, it was a total loss.”
Upon this conclusion of fact the court adjudged, in effect, that the loss resulting from the second fire and the operation of the city ordinance, which forbade the repair or rebuilding of the insured building,
After the second fire, application was made to the city authorities to repair the building, and such permission was refused on account of an existing ordinance, which forbade the repair or rebuilding of any wooden building within the fire limits, destroyed to the extent of one-third of its value by fire. Ho question is made as to the validity of such an ordinance. The case of Brady v. Insurance Co., 11 Mich., 445, in its facts was almost identical with this, and in that case it was held that the parties having contracted in view of the city ordinance, which prohibited the reconstruction or repair of a wooden building, situated within the fire limits unless by leave of the common council, which had been refused, the fire must be deemed the proximate cause of the loss, and the loss total. We see no reason to doubt the correctness of this conclusion. The case of Brown v. Insurance Co., 1 Ellis & Ellis, 853, is substantially to the same effect.
From these views it is unimportant that the court below based its judgment on the ground last stated, and, in effect, held that the loss was not total except as considered in reference to the inability to repair or rebuild, in consequence of the extent of injury done by the second fire, which, of itself, under the specific facts found to be true, we hold, caused a total loss, without reference to the fact that the building, under the city ordinance, could not be repaired or reconstructed. In any event the judgment was right and must be affirmed.
Affirmed.
[Opinion delivered April 20, 1886.]