| W. Va. | May 12, 1914
Defendant was awarded this writ of error to a .judgment against it for the full amount of insurance, in an action upon a fire insurance policy covering a three story brick building in the town of Belington. Defendant insured the property to the amount of $2,000. Plaintiff held concurrent insurance aggregating $30,500, making the total amount of insurance $32,500. Defendant filed specifications relying upon a breach
Defendant admitted in 'its specification number one that the contracting parties could not agree on the amount of loss, and that an effort had been made to have it arbitrated in accordance with the terms of the policy, but that it miscarried because the arbitrator appointed by the plaintiff refused to agree upon an umpire, unless he could be permitted to name him, and that, at the instance of plaintiff, he refused to designate anyone as umpire who was not partial to plaintiff. Plaintiff replied by way of confession and avoidance, making like charges respecting the conduct of defendant and the appraiser selected by it. There is no proof to show which party, if either, was at fault in failing to select an umpire. The arbitrators may not have been influenced by the respective parties, and still have failed to agree. In that event others would likely have to be appointed in their places. But if the failure to agree upon an u-mpire had been shown to be due to the fraudulent conduct of the insurer, it would no doubt be estopped to set up a breach of the condition. 4 Cooley’s Briefs on Insurance Law, 3626-3627. The fact is, that there was no agreement upon the amount of loss, and no arbitrament of it as provided in the policy. But the reason why there was not, does not appear. Full compliance with all the promissory warranties or conditions in the policy, is expressly made a condition precedent to the right of action on the policy, and the question with which we are confronted is: Whose duty was it to explain why this condition had not been performed? It was clearly the plaintiff’s duty, as it was essential to his right of action. He stands upon a contract which says
Notwithstanding the four walls of the building are standing, and the metal roof is on it, still if the walls are so injured by the fire that a prudent man would not use any part of them ás a basis of repairs, and they would have to be torn down and rebuilt, the loss would be total. Insurance Co. v. Board of Education, 49 W. Va. 360" court="W. Va." date_filed="1901-03-25" href="https://app.midpage.ai/document/providence-washington-insurance-v-board-of-education-8174974?utm_source=webapp" opinion_id="8174974">49 W. Va. 360; 4 Cooley’s Briefs on Insurance Law 3047; and 19 Cyc. 833. It matters not that portions of the material now in the building can be utilized in rebuilding. It was not the material composing the building that was insured, but the building itself, and “if its remnant can not be used as a basis of repair or restoration, the loss is total.” Hinkle v. Insurance Go,, supra. The jury had to determine from the evidence whether the loss was total or only partial.
The three-fourths value clause attached to the policy contained this clause: “Total insurance permitted is hereby limited to three-fourths of the cash value of the property hereby covered and to be concurrent herewith.” This was implied consent to carry additional insurance, but limited the whole amount of insurance to three-fourths of the cash value of the building. 19 Cyc. 766; 2 Cooley’s Briefs 1833; and Palatine Ins. Co. v. Ewing, 92 F. 111" court="6th Cir." date_filed="1899-03-07" href="https://app.midpage.ai/document/palatine-ins-v-ewing-8864507?utm_source=webapp" opinion_id="8864507">92 Fed. 111. The total insurance on the building, at the time of the fire, was $32,500, written by various companies. The evidence respecting the cash value of the building, just before the fire, is as conflicting as the evidence on the question of total loss, and both are jury questions. If the policy had limited the concurrent insurance to a definite sum of money instead of to an aliquot part of the unascertained value of the whole building, and plaintiff had held additional insurance in excess of that sum, there is no doubt that it would have been a violation of his promissory warranty and would have avoided his policy. 19 Cyc. 766; Mitchell v. Insurance Co., 51 Pa. St. 402; Royal Insurance Co. v. McCrea, 8 Lea (Tenn.) 531, 41 Am. Rep. 656; Allen v. Insurance Co., 123 N.Y. 6" court="NY" date_filed="1890-10-07" href="https://app.midpage.ai/document/allen-v-german-american-insurance-3626356?utm_source=webapp" opinion_id="3626356">123 N. Y. 6. But the policy is an open one, and the insured had to exercise his judgment in determining whether he was within limit. There is neither averment nor proof that he fraudulently over-insured, and it would be a
In his affidavit, furnishing proof of loss, plaintiff did not claim the loss was total, but that it amounted to $20,000. ITe has brought his suit, however, on the theory of a total loss, and explains in his testimony that, immediately after the fire, he thought portions of the walls could be used in making repairs, but that he later learned they could not and would have to be torn down and rebuilt. ITe also says he thought, at the time he furnished proof of loss, his damage amounted to more than $20,000, but that by fixing it at that amount, he could readily get an adjustment with the insurance companies. Proof of
The trust deed upon the property to T. S. Riley, trustee, is not a breach of the warranty that plaintiff is the sole and unconditional owner. The loss payable clause of the policy was expressly made for the benefit of said trustee. This point, however, is not urged in brief of counsel for plaintiff in error. It would not have constituted a breach, 'even if the existence of the trust deed had not been disclosed. It was only an encumbrance, and plaintiff did not warrant against encumbrances. Quarrier v. Pealody Insurance Co., 10 W. Va. 507" court="W. Va." date_filed="1877-05-01" href="https://app.midpage.ai/document/quarrier-v-peabody-insurance-co-6591718?utm_source=webapp" opinion_id="6591718">10 W. Va. 507, and Wolpert v. Northern Assurance Co., 44 W. Va. 734.
The court instructed the jury, at the request of plaintiff, that he was entitled to recover the full amount of insurance, if they were satisfied from the evidence that the loss was total, or, if not total, that it was equal to, or greater than, the total amount of insurance, provided they were further satisfied that the entire insurance did not exceed three-fourths the cash value of the property. On the state of the proof disclosed by the record, plaintiff could recover only in case the loss was total, and if the -jury did not believe the evidence proved a total loss, they could not find for plaintiff, because he had not' shown a waiver of the arbitration clause, or excused his noncompliance with it. For this reason it was error to give plaintiff’s instructions Nos. 2 and 7, and, being unable to determine from the record whether the jury’s verdict rests on a finding that the loss was total or only partial, we must assume that defendant was prejudiced by the giving of those instructions. In other respects they correctly state the law. Plaintiff would have been entitled to full indemnity, if he had shown compliance with all his promissory warranties, set
Plaintiff’s 8th instruction correctly told the jury that, if they believed from the evidence the plaintiff’s loss was total, the three-fourths value clause attached to the policy did not limit defendant’s liability. This question we have already discussed. Hinkle v. Insurance Co., supra.
It was proper to refuse defendant’s instruction No. 1, because it would have told the jury to find for defendant in any event. It disregarded the evidence relating to a total loss. It should have had some such qualification as, “unless they find the loss was total. ’ ’
Defendant’s instructions Nos. 8 and 13 are bad, and were properly refused, because they make no allowance for honest differences of opinion as to the cash value of the property. The special interrogatory -which defendant desired to have submitted to the jury was properly refused for the same reason.
Defendant’s instructions Nos. 9 and 10 are bad for the reason that they would have denied recovery of damage to the building, necessarily resulting from the action of the fire, although not discoverable immediately thereafter. Nos. 11 and 17 would have been confusing and misleading and were, therefore, properly refused. The jury may have concluded from the evidence that it would cost as much as the amount of insurance, to restore the building, and, in that event, plaintiff ■was entitled to full indemnity, if entitled to anything at all.
Defendant’s instruction No. 14 correctly defined a total loss, and should have been given. But the record does not show that it contains all the instructions that were given, and the court may have refused to give this instruction on the ground that the question was covered by some other instruction which was given but which does not appear in the record. Therefore, out of deference to the trial court, we must presume that he refused to give it for that reason. If this were the only alleged error we would not reverse the judgment, because we could not say the court erred in refusing even a good instruction when he may have been justified in doing so. A party seeking reversal for the refusal of an instruction must show, by the record, that there was no justification for refusing to
For the reasons herein given we reverse the judgment, set aside the verdict and remand the case for a new trial.
Reversed and Remanded.