Opinion
No. 32045.
February 24, 1936. Suggestion of Error Overruled, May 4, 1936.
1. EVIDENCE.
In action on fire policy, witnesses who had dealt to considerable extent in buying and selling of buildings held competent to testify as to extent of damage to building, and cost involved in reconstructing building.
2. APPEAL AND ERROR. Trial.
Where considerable time had elapsed since building was damaged by fire and building had been additionally damaged by exposure to elements, permitting of jury trying action on fire policy to view premises held objectionable but not prejudicial error, where only issue before jury was whether there had been a total or partial loss and testimony before them was sufficient to disclose this.
3. INSURANCE.
Where building was a total loss as result of fire and appraisers appointed under fire policy had not valued property prior to burning at amount stated in policy, their finding was ineffective, in view of valued policy law (Code 1930, section 5183).
4. TRIAL.
Where instructions, when taken as a whole, furnished jury a proper guide, they were sufficient, notwithstanding some of instructions, if taken alone, would be inaccurate and erroneous.
5. INSURANCE.
Where building was a total loss as result of fire, and appraisers' determination of loss was ineffective because not based on value of property as stated in policy, interest on claim against insurer accrued from date of loss and not from sixty days after determination (Code 1930, section 5183).
APPEAL from the circuit court of Leflore county. HON. S.F. DAVIS, Judge.
H.T. Odom, of Greenwood, and Watkins Eager, of Jackson, for appellants.
The burden of proof was upon the plaintiff to establish by a preponderance of the evidence that the dwelling house was totally destroyed, under the provision of the valued policy statute, section 5183 of the 1930 Mississippi Code, because appellee introduced no evidence whatsoever as to the actual extent of the loss or damage, or that is to say, what it would cost to repair the building to its original condition, and, therefore, relied solely on the valued policy statute, with respect to the measure of damages.
Stevenson v. Y. M.V.R.R. Co., 112 Miss. 899, 74 So. 132; Gentry v. Gulf Ship Island R.R. Co., 109 Miss. 66, 67 So. 849; Mardis v. Y. M.V.R.R. Co., 115 Miss. 734, 76 So. 640.
Any instruction predicated on the jury being "satisfied" requires too high a burden, and is prejudicial and reversible.
Moore v. Keinike, 119 Ala. 267, 24 So. 374; Lawrence v. Doe, 144 Ala. 524, 41 So. 612; Y. M.V.R.R. v. Smith, 82 Miss. 656, 35 So. 168.
It is elementary that it is error to give contradictory or conflicting instructions.
Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842.
Conflicting and contradictory instructions are not cured by other instructions.
Solomon v. City Compress, 69 Miss. 319, 12 So. 339; Y. M.V.R.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90.
Instructions to the jury that in coming to their conclusion they must "carefully consider the circumstances of the case" are misleading, since the jury should consider the facts and circumstances of the case as shown in evidence.
Larkensville Mining Co. v. Flippo, 130 Ala. 361, 30 So. 358; Walls v. Decatur Fertilizer Co., 215 Ala. 426, 111 So. 214; Forbes Piano v. Reynolds, 1 Ala. App. 501, 56 So. 270; Monticello Plywood Box Co. v. Haney, 167 Miss. 622, 142 So. 497; Georgetown Mercantile Co. v. Steen, 155 Miss. 719, 125 So. 120.
The learned trial court erred in sustaining appellee's motion to strike appellants' notice under the general issue.
The learned trial court erred in refusing the instructions requested by each of the appellants separately directing the jury to return separate verdicts in favor of the appellee, and in the amounts theretofore ascertained by the appraisers, and as shown by the appraisal agreement identified and introduced in evidence.
Scottish Union National Ins. v. Skaggs, 114 Miss. 618, 75 So. 437; Stout v. Garrard Co., 128 Miss. 418, 91 So. 33.
The appellee's instruction No. 7 is in conflict with the statute, section 2067, Code of 1930, and the statute should be strictly construed and no exception ingrafted thereon by judicial construction.
Reith v. Ansley, 162 Miss. 886, 140 So. 521.
The trial court erred in permitting the jury to view the premises.
National Box Co. v. Bradley, 154 So. 724, 171 Miss. 15; 64 C.J., pages 88 and 89.
The learned trial court erred in admitting opinion evidence of non-expert witnesses to the effect that appellee's dwelling house was a total loss.
The learned trial court erroneously included four hundred twenty dollars as interest in the judgment. Gardner, Denman Everett, of Greenwood, for appellee.
A new trial will not be granted where it is apparent from the whole record that the verdict is right on the facts of the case.
Hill v. Calvin, 4 H. 231; Pritchard v. Meyers, 11 S. M. 169; Wiggins v. McGimpsey, 13 S. M. 532; Magee v. Harrington, 13 S. M. 403; Baskins v. Winston, 24 Miss. 431; Simpson v. Bowden, 23 Miss. 524; Brantley v. Carter, 26 Miss. 428; Dozier v. Ellis, 28 Miss. 730; Fore v. Williams, 35 Miss. 533; Cameron v. Watson, 40 Miss. 191.
By reference to the decision of this court, we find that the court lays down this rule, to be observed in the future in this sort of cases that, where there is a substantial part of the building remaining after the fire, there is not a total destruction. This court, in this decision, seems to follow the rule laid down by the Supreme Court of Minnesota in the case of Northwestern Mutual Life Insurance Co. v. Rochester German Ins. Co., 85 Minn. 48, 88 N.W. 265, 56 L.R.A. 108, in which that court, among other things, says, in speaking of the part of the building remaining after the fire: "In arriving at a determination of what a prudent owner would do under such circumstances, it is proper to consider not only the condition of the walls standing, whether they are suitable, in place, to be used as a part of the reconstruction, but, also, the relative value of such walls in place, as compared with the cost of rebuilding. It does not follow that, because some part of the remnants may be utilized in place, there is not substantial and total destruction and loss. The law will not take note of trifles in this respect. It follows that there must remain a substantial part of the building in place, which, with reasonable repairs, can be used in its reconstruction. What such substantial part is, is a question of fact, depending upon the nature and cost of the structure and the character and condition of the remaining parts."
To this, this court adds: "It only remains to be said that substantial parts of a building must remain in place, above the foundation, in order to prevent the destruction of the building from being total. If only the foundation of the building remains in place, the building is totally destroyed within the meaning of the policies, although some parts of the building remain in such condition as to be of value as salvage."
Scottish Union Natl. Ins. Co. v. Warren Gee Lbr. Co., 118 Miss. 740, 80 So. 9; Smith v. Shelton, 132 Miss. 118; Supreme Court Rule 11, 101 Miss. 906, 59 So. IX.
Where there has been a view or inspection of the place or premises by the jury we cannot reverse on the evidence, if there be any substantial testimony, delivered by sworn witnesses in support of the verdict.
National Box Co. v. Bradley, 171 Miss. 16.
Verdicts which are responsive to the issue, and are erroneous only, as to the amount of damages, will not be revised by this court, unless there be a motion for a new trial in the court below overruled, and a bill of exceptions taken embodying the evidence.
Kelly v. Brown, 32 Miss. 202; 3 C.J. 988, sec. 910; Fellows v. Dorsey, 171 Mo. App. 289, 157 S.W. 995; 2 R.C.L. 98, sec. 72; St. L. S.F. Ry. v. Bridges, 156 Miss. 206; Gulf, Mobile N.R. Co. v. Jones, 155 Miss. 689.
A new trial will not be granted where it is apparent from the whole record that the verdict is right on the facts of the case.
Hill v. Calvin, 4 H. 231; Pritchard v. Meyers, 11 S. M. 169; Wiggins v. McGimpsey, 13 S. M. 532; Magee v. Harrington, 13 S. M. 403; Baskins v. Winston, 24 Miss. 431; Simpson v. Bowden, 23 Miss. 524; Brantley v. Carter, 26 Miss. 482; Dozier v. Ellis, 28 Miss. 730; Fore v. Williams, 35 Miss. 533; Cameron v. Watson, 40 Miss. 191; 1 Miss. Digest, page 152, sec. 1028.
This court will not reverse for errors in the rulings on pleadings, where the whole case has been developed by evidence, and it is manifest that a different result could not be reached.
Houston v. Smythe, 66 Miss. 118, 5 So. 520; Insurance Co. v. Jones, 49 Miss. 80; Germania Fire Ins. Co. v. Francis, 52 Miss. 457, 24 Am. Rep. 674; Alabama, etc., R. Co. v. Brooks, 69 Miss. 168, 13 So. 847; 1 Miss. Digest, page 153, sec. 1028.
Argued orally by Pat Eager, for appellant, and by A.F. Gardner, for appellee.
This is the second appeal in these cases, the decision in the former appeal being reported in Franklin Fire Ins. Co. v. Brewer, 159 So. 545. W.L. Brewer was the owner of a residence in Greenwood, Mississippi, and carried two policies of insurance, one in the Franklin Insurance Company, and the other in the Yorkshire Insurance Company. On the trial, the two cases were consolidated and tried together, the policies containing, substantially, the same provisions. On the remand of the cause to the court below the issue submitted to the jury was whether or not there was a total loss, or only a partial one, and there was evidence warranting the jury to find a total loss, if they believed the testimony in that regard.
The policy provided that the insurance company should not be liable beyond the actual cash value of the property at the time the loss occurred, with proper deduction for depreciation, and in no event should exceed what it would cost to repair or replace the building with like material. It further provided that if the insured and insurer differed in the appraisement, they should each select an appraiser, and the two so selected should select a competent and disinterested umpire, and that the award in writing of any two should determine the amount of such loss.
This clause of the policy was set up by appellants as a defense, was demurred to, and the demurrer was sustained as being in violation of the "valued policy" law of this state. The same matter was again set up in the notice under the plea of general issue, and, on motion of appellee, the court below struck out the notice under the plea of general issue.
After the fire occurred, there was a disagreement between the insured and insurer as to the extent of the loss, and the insurer insisted upon arbitration to settle their differences, and thereupon appointed a contractor as an appraiser to represent it, the insured also appointing an appraiser. The two appraisers so appointed agreed upon the loss and valued the property far below that stated in the face of the policy, and this award was set up as a defense by the insurance company.
The court instructed the jury to find for the appellee in the amount sued for if they believed testimony to the effect that there was a total loss, or to find for the appellants if they believed testimony in their favor. There was testimony favorable to each side of this case. Witnesses for the appellee testified that the parts of the building not destroyed were injured, and would have to be taken down and put in shape in reconstructing the building, and that the cost of doing this would more than equal the value of such material, and that they would rather reconstruct the building with new material. Testimony for the appellant tended to show that the parts of the building not destroyed could be used to advantage in reconstructing the building.
Appellants objected to the introduction of some of the testimony for the appellee, saying that the witnesses were not experts and not entitled to testify as to the extent of the damage and the cost involved. Some of these witnesses were persons who had dealt, to a considerable extent, in the buying and selling of buildings, and we think their experience was sufficient to make their evidence admissible, and to be of value in solving the questions involved in the suit.
The court below, over the appellants' objection, permitted the jury, on motion of the appellee, to inspect the building, but this inspection was made after the former trial, and considerable time had elapsed since the burning, and the proof showed that the building had been damaged in value by the exposure to the elements. It is earnestly insisted by the appellants that the action of the court below in permitting this inspection by the jury was prejudicial error because of the changed situation brought about by the exposure, and the consequent deterioration in value, and also that photographs taken were available, to show the condition of the building, and from which the court and jury could secure an adequate idea of these conditions. The appellants insist that the action of the court is contrary to the views announced in the case of National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 95 A.L.R. 1500.
As to the photographs, it is sufficient to say that they do not portray the interior of the building, where the testimony shows the greater damage was done.
Under the facts, the court should not have permitted the jury to view the premises, as there had been too great a lapse of time between the burning and the trial of the case.
We think, however, that the condition of the building, as shown by the testimony, shows whether there had been a total or a partial loss within the meaning of these terms. This being true, the inspection by the jury was not prejudicial and harmful, because the court peremptorily instructed the jury that, if they found the loss was partial and not total, they should find the amount of the award as fixed by the appraisers.
We again caution the courts against permitting such views when the facts do not reflect with substantial accuracy the conditions existing at the time involved in such inquiries.
Under our valued policy law (Code 1930, section 5183), an insurance company, in the case of a total loss, is not permitted to show that the property was not of the value stated in the policy.
In view of this fact, and of the finding of the appraisers that the property was not valued by them at the amount stated in the policy just prior to the burning, the appraised value found was futile in case of a total loss. We think there was competent evidence to sustain the finding of the jury, and that the finding of the appraisers is not effective.
There is complaint by the appellants of a number of instructions. We do not deem it necessary to review all of these instructions, but when the instructions are taken as a whole, and one treated as supplementing or modifying another, as is the rule in this state, they furnish to the jury a proper and sufficient guide. Some of the instructions taken alone would be inaccurate and erroneous, but when considered with others, their defects are supplied.
It is also urged that the court below erred in allowing interest from the date of the loss to the time of filing the suit, rather than from sixty days after the determination of the loss under the policies. The jury found there was a total loss, as warranted by the evidence, and the interest accrued from the date of the loss.
After a careful consideration of the record and the argument, we are of the opinion that the court below committed no reversible error, and the judgment will be affirmed.
Affirmed.