Phoenix Insurance v. Shulman Co.

125 Va. 281 | Va. | 1919

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

The questions raised by the assignments of error will be passed upon in their order as stated below.

[1] 1. Did the assured have an insurable interest at the time of the fire in the improvements which were the subject of the insurance contract in suit?

This question must be answered in the affirmative.

It is claimed by the insurance company that under the provisions of the lease set forth in the above statement of

facts, the assured had no insurable interest in the improvements aforesaid, for the reason that in case of partial destruction of the premises by fire (which the insurance company insists is the case before us) the landlord, as provided in the lease, was obligated to restore the premises, so that the assured had only to insist upon its contract rights against the. landlord, and it would have suffered no loss by the fire in question. We may conclude that as between the landlord and the assured, the destruction of the leased premises by fire was only partial, and yet the correctness of said position would depend upon the determination as to what condition the landlord was obligated by the lease to restore the premises in such case. As appears from the statement of facts above, the premises were rendered unten-antable by the fire. The contract admits of some question whether in such case there is any absolute obligation on the landlord to repair. But if it be conceded that if the premises were not totally destroyed, there was an obligation upon the landlord to repair, such obligation would go to the extent of restoration of the premises only to the condition they were in when the lease was executed, natural wear and tear excepted. That is to say, to the condition of an inferior-class floor and store front such as would have existed just prior to the fire if the better class of improvements installed at the expense of the assured had not been put in. This was the extent of the landlord’s obligation. Were the landlord to discharge that obligation that would not restore the improvements which were the subject of the insurance, but a different class of improvements. The assured would be still left wholly without the class of such improvements, which were put in at its expense, the portion of the value of which outlay remaining as a property interest in the assured at the time of the fire, being precisely what was insured, and not the inferior class of improvements. To again obtain the better class of improvements aforesaid, the assured would have to put them in at its own expense, as it did originally, which expense, less the excess value to the assured of new over the value of the old improvements at the time of the fire, if there was any such excess value, would measure its loss. Such was the loss, to the extent of'$7,500.00, against which it had taken out insurance. Figured at the monthly decrease in value fixed by the policy of insurance (which allowed both for depreciation in use and the vesting of title in the landlord, as the lease provided), such loss, of the assured at the time of the fire was $8,416.92. There was no deduction to be made from this because of the value in the material in the improvements left undestroyed by the fire, because under the lease they belonged to the landlord, and not to the assured.

Further:

If the leased premises (which included other property than that which was mentioned in the insurance policy) had been totally destroyed by the fire without fault of the lessor (and there is no evidence in the case of such fault) there was under said lease no obligation on the landlord to restore the premises.

Hence, whether the destruction of the leased premises was total or partial, the assured had an insurable interest at the time of the fire in the subject of the insurance.

[2] 2. Was there a “total destruction” by fire of the improvements which were covered by the insurance contract at the time of the fire within the meaning of that contract?

This question also must be answered in the affirmative.

As appears from the statement preceding this opinion, there was not a total physical destruction of the material remaining in such improvements at the time of the fire. But as the result of the fire, none of such material could be used to restore the improvements to that class and condition in which they were imediately preceding the fire. This resulted in a loss to the assured of $8,416.92, as we have above seen. That, as we have also above seen, was a total loss to the assured of the whole value of the interest which it insured. It is in truth a situation in which what would have been but a partial loss to an owner of the building, since he would have owned the material left undestroyed by the fire, was a total loss to the tenant, since the latter did not own the material, so that the sale or any use of it might minimize the damages, and since the material was so injured that it could not be used in the reconstruction of the class of improvements which the tenant needed in his business. And in order to restore the improvements to their condition just prior to the fire required new material and a new outlay by the assured, as aforesaid. We have thus presented a case certainly of “total loss” to the assured of the subject of the insurance as a result of the fire.

Does the use of the term “total destruction” in the contract of insurance render it inoperative to indemnify the assured against such loss? If so, such construction of the contract would operate to defeat the assured from obtaining indemnity for the only interest which it in fact insured or could have insured, although there was a total loss of that interest. The.assured had no interest in any material left undestroyed by the fire, as aforesaid, if it was so injured as to be of no use to it for the particular purpose of the restoration aforesaid. It would seem peculiar and not to be expected that the assured would enter into a contract and pay an insurance premium for indemnity for loss conditioned upon the “total destruction,” in the ordinary meaning of those words, of property not its own (being of material in which it had no interest). The language of a contract would have to be very plain to such an effect for it to receive that construction.

[3] It is true that an insurance contract, like any other contract, must be construed in accordance with its terms. Its plain meaning must be given effect. Courts cannot make contracts for parties. But all of the provisions of the contract will be construed together, and seemingly conflicting provisions will be harmonized, when that can be reasonably done so as to effectuate the intention of the parties as expressed in the contract. And especially is this true as to insurance contracts, which, under well-settled rules, in case of doubt as to their meaning, are construed strictly against the insurer and liberally in favor of the assured.

A provision in the “rider” clause of the policy in suit expressly provides that “it is the intention of this insurance to indemnify the insured against fire loss to the property described. * * *” (Italics supplied.) It is true that this provision is immediately followed by the language “only in case of total destruction by fire.” But, taken together, even if considered separately from the other provisions of the policy, it cannot be said that the plain meaning of these pro-event of “total destruction” of the property mentioned, in the event of total destruction” of the property mentioned, in the sense which would be given those words in an ordinary policy where the assured is absolute owner of the material composing the property inshred. The words “total destruction” must be construed with the fact borne in mind that the policy is not an ordinary policy. And when we look to the beginning portion of the policy we see there the provision that the insurance company does insure the assured “against all direct loss * * * by fire, except as hereinafter provided.”

We are of opinion, therefore, that the reasonable construction of the policy in suit is that such a destruction of the property mentioned therein as would result in a “total loss” to the assured of the whole value of its interest in the property mentioned constitutes the “total destruction” stipulated in the policy.

Such is the case before us as we view it upon principle.

When we come to consider the authorities cited pro and con we find, as said in a learned note in 56 L. R. A., p. 784, dealing with the subject, that: “The courts have met with considerable difficulty in attempting to define the words ‘total loss’ and ‘totally destroyed,’ and apparently conflicting rules have been adopted.” See also, Phoenix Ins. Co. v. Port Clinton Fish Co., 14 Ohio Cir. Ct. R. 160; Murphy v. American Cent. Ins. Co., 25 Tex. Civ. App. 241, 54 S. W. 407; O'Keefe v. Liverpool, L. & G. Ins. Co., 140 Mo. 558, 41 S. W. 922, 39 L. R. A. 819; Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797; Pennsylvania Fire Ins. Co. v. Brackett, 63 Ohio St. 41, 57 N. E. 962, 81 Am. St. Rep. 608; Corbett v. Spring Garden Ins. Co., 155 N. Y. 389, 50 N. E. 282, 41 L. R. A. 318. Many of the cases cited and cases referred to therein and in the note to 56 L. R. A., p. 784, aforesaid, turn, however, upon the fact that total destruction of the building insured was the stipulation in the policy, and they do not concern an insurance of a financial interest in the use of improvements of a certain character which compose a part of a building.

[4] However, we are relieved in the instant case from entering upon an interpretation of the authorities on a difficult and abstruse subject and from the attempt to deduce therefrom the principles of law applicable to the case before us, by the fact that the trial court gave an instruction which was asked for by the insurance company, and given as asked, which instruction presented to the jury the same conclusion of law as that which we have above reached with respect to the meaning of “total destruction” as those words are used in the policy in suit. That instruction is as follows: "

“Instruction No. 3. — The court instructs the jury that' under the terms of the policy of insurance sued upon in this proceeding, the plaintiff cannot recover unless the jury shall believe from the preponderance of the evidence that the property insured was totally destroyed. The words ‘total destruction,’ as used in the policy sued on, do not mean the complete extinction or annihilation of the property, but do mean that the property must have been so injured that a reasonably prudent owner would not use the same in restoring’ it to its former condition, but would abandon it and construct the property anew.”

Having asked for such instruction and the case having been tried upon the rule of law thus laid down, and the evidence for the assured having fully measured up to such rule, as appears from the statement of facts preceding this opinion, the insurance company is in this case bound by such rule of law.

It follows from what we have said, also, that we are of opinion, as an independent proposition, that such instruction correctly propounded the law as applicable to the policy of insurance in the instant case.

[5] 3. Can the insurance company maintain the complaint that the action of the trial court in giving the following instruction was error?

This question must be answered in the negative.

The instruction referred to is as follows:

“The court instructs the jury that the plaintiff in this suit had an insurable interest in the property insured under the policy in this suit regardless of the terms of the lease in evidence.”

The insurance company assigns the giving of this instruction as error prejudicial to it in that it permitted the jury to disregard the terms of the lease. It would seem from the verdict that the jury did not avail themselves of such permission. If not, the objection to the instruction loses its force. But, in any event, the instruction could have been prejudicial to the insurance company only in case the assured had no insurable interest under the terms of the lease, as was the contention of the insurance company. As we noted above, the assured did have an insurable interest under the terms of the lease. Therefore, the position of the insurance company on which such assignment of error rests is untenable, and hence the assignment of error itself cannot be maintained.

[6] 4. Was it error in the trial court to admit, over the objection of the insurance company, testimony tending to show what was the cash value of the interest of the assured in the improvements aforesaid at the time of the fire?

This question must be answered in the negative.

By the express terms of the “rider”, provisions of the policy, the interest insured was the original cost of the improvements as of January 1,1918, less, not only the monthly decrease named, but also “deductions for depreciation as provided in the printed conditions of this policy.” The printed conditions referred to are quoted in the statement preceding this opinion, and, as will be seen therefrom, they provided that the insurance company “shall not be liable beyond the actual cash value of the property at the time of loss. * * *” Hence, the testimony in question was relevant and admissible.

For the foregoing reasons, we find no error in the judgment under review, and it will be affirmed.

Affirmed.