122 P. 196 | Okla. | 1912
This was an action on a fire insurance policy by Harry Homewood, hereinafter called plaintiff, against the Springfield Fire Marine Insurance Company, hereinafter called defendant, to recover for the burning of a certain private car, known as "Gertrude," the property of the plaintiff. The policy was issued September 10, 1907, for one year, and the loss occurred on the 27th of November, 1907, at Tecumseh, in this state.
There are only two questions raised by defendant's brief: First. That the loss was not appraised before the suit was brought, as provided by the policy. It was stipulated in the policy that, in case of a disagreement between the insurer and the insured, the amount of loss should be determined by appraisement, the insured to select one appraiser, the company another, and the two appraisers thus selected to choose the third, and the three to appraise the property. At the time the policy was written, and when the loss occurred, section 3199, Wilson's Rev. Ann. St. 1903, was in force. That section provided as follows:
"All insurance companies issuing policies in this territory shall be required to pay in case of total loss the full amount, and in case of partial loss shall be required to pay the amount of loss so sustained, for which the property is insured; provided, however, that no policy shall be issued which shall contain a sum greater than seventy-five per cent. of the value of the property so insured."
This section is quoted in Farmers' Merchants' Ins. Co. v.Cuff,
"* * * If there is no valuation in the policy, the measure of indemnity in an insurance against fire is the full amount stated *523 in the policy; but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine insurance."
This section was construed in the case of Oklahoma Farmers'Mutual Indemnity Association v. McCorkle,
Two questions then arise. The first is, Was there a total loss? And the second, If the loss was total, was appraisement necessary? It appears from the evidence that everything combustible in and about the car was burned, and all of the car that could burn was burned, and all of the contents that could be burned were burned. All that was left was the iron and steel work of the car, and that, according to the testimony, was so injured and changed by the fire as to make it incapable of use in another car, and had no value, except as scrap iron or rubbish. It was then a total loss, so far as it was possible for fire to make it a total loss.
In the case of Seyk v. Millers' Nat. Ins. Co.,
"Were the insured buildings wholly destroyed, within the meaning of section 1943? The evidence is that all the combustible material in the structures was destroyed, and, although portions of the brick wall were left standing, yet they were useless as walls, and many, perhaps most, of the bricks therein were spoiled by the heat. It cannot be doubted that the identity and specific character of the insured buildings were destroyed by *524 fire, although there was not an absolute extinction of all the parts thereof. This was an entire destruction of the building, within the meaning of the statute."
In Palatine Ins. Co. v. Weiss,
"It is unnecessary to multiply citations from authorities bearing upon this question. It is the opinion of the court that the words 'total loss,' when applied to a building, do not mean that the materials of which the building was composed were all totally destroyed and obliterated. It is not necessary that all of the parts and materials composing the building should be absolutely and physically destroyed; but the inquiry always is: Does the insured building, after the fire, still exist, preserving substantially its identity, or has it become so broken and disintegrated that it cannot be designated as the structure which was insured? There may be a total loss, within the meaning of the statute, even though some parts of the building may remain standing after the fire. See Wood, Ins. sec. 107; May, Ins. sec. 420a; Ostr. Ins. (2d Ed.) sec. 610; Bid. Ins. sec. 1375; Joyce, Ins. secs. 3025, 3030; Beach, Ins. sec. 890; Black, Law Dict. 'Total Loss'; Judah v. Randal [2 Caines, Cas. (N.Y.) 324]; Harriman v. Insurance Co.,
See, also, Murphy v. Am. Cent. Ins. Co.,
In Liverpool, London Globe Ins. Co. v. Heckman,
"The phrase 'total loss,' or its equivalent, 'wholly destroyed,' as used when applied to the subject of insurance, does not contemplate the entire annihilation or extinction of the property insured. Nor does it require that any portion of the property remaining after the loss shall have no value for any purpose whatever; but it means only destruction of the property insured to such extent as to deprive it of the character in which it was insured." *525
When the car was burned, nothing remained but the debris or scraps. Although they may have had some value, 3 or 3 1/2 per cent of the total value, still it was destroyed as a car; and fire had done all the damage it was possible for fire to do it. Destruction by fire, so far as fire could destroy, was the thought that was in the parties' minds at the time the policy was written. Total loss occurred, within the meaning of the policy, when everything was destroyed that fire could destroy.
It is obvious that if the total amount of the policy was payable in the event of total loss no appraisement was necessary. The amount of the policy was the amount payable, and there was nothing to appraise. While the exact point was not decided in either case, the reasoning of both Oklahoma Farmers'Mutual Indemnity Association v. McCorkle,
In the case of Oshkosh Gaslight Co. v. Germania Fire Ins.Co.,
"The statute must be regarded as a part of the contract of insurance, and the amount written in the policy as liquidated damages agreed upon by the parties conclusively in such contract."
In Lancashire Ins. Co. v. Bush,
"The statute, which is to be regarded as part of the contract, fixes conclusively the worth of the building which is the subject of insurance. If the property is wholly destroyed, its actual value is not to be determined by evidence, agreement, or arbitration. The damages are liquidated, and the measure of recovery already ascertained."
A large number of cases, among which are German Ins. Co. v.Eddy,
Defendant's second contention is that the court erred in permitting Gertrude Homewood, the wife of plaintiff, to testify in the case. The execution of the policy is admitted, and the destruction of the property by fire was amply proved by several witnesses, both for the plaintiff and the defendant. Mrs. Homewood's testimony was entirely immaterial. It was not necessary to prove the value of the property. Marshall v. Am.Guarantee M. F. Ins. Co., 80 Mo. App. 18. When the execution of the policy was shown, and the destruction proven to be a total loss, the liability of the company was established. These facts were practically admitted by the company and were proven by the other witnesses. Whether Mrs. Homewood's evidence was competent or not cannot affect the decision of the case. However, she testified that she had full control of the car and the contents in the absence of her husband, and her testimony was confined to conditions and transactions existing and occurring in his absence. Her testimony appears to have been competent.
The judgment should be affirmed.
By the Court: It is so ordered. *527