Thompson v. St. Louis Insurance

Cole, J. The principal question in this case, arising under ch. 347, Laws of 1874, is passed upon in Reilly et al. v. Franklin, Ins. Co., [ante, p. 449], and therefore need not be further considered. The complaint cannot be held defective because it fails to show what tbe actual cash value of the property was when destroyed. It is further objected that the complaint does not show that the plaintiffs bad an insurable interest in the property or were injured by its destruction. A bare examination of the complaint will furnish a sufficient answer to this objection. It shows that all the plaintiffs except Thompson were interested in the insured property as mortgagees, to the amount of several thousand dollars, and that the policy, by its terms, provided that the loss should be payable to them to the amount of their mortgage interest. In respect to Thompson, it is alleged that he had an interest in the insured property as owner to an amount exceeding the insurance; and that the property was wholly destroyed. The complaint sets out the policy in Imo verba. There is a stipulation in the policy that, in case of difference as to the amount of loss, the matter, at the request of either party, shall be submitted to arbitrators, whose award upon the question shall be final. It is objected that there is no allegation that such arbitration was had, etc. The law of 1874 makes the amount of insurance written in the policy conclusive as to the value of the property, the extent of loss sustained, and measure of damages. The stipulation to arbitrate, being in [463] consistent with the provisions of the statute, must yield. The same remark may be made in respect to the objection that the policy provides that no action shall be brought in any court until an award shall have been obtained fixing the amount of the claim. The statute determines the amount of loss. In short, it appears from the complaint that a contract of insurance was made; that the premium was paid; that the plaintiffs have an insurable interest in the property; that the property was totally destroyed; and that the plaintiffs have performed all the conditions of the policy on their part to be performed. "We think the complaint states a cause of action, and that the demurrer to it was properly overruled. By the Gov/rt. — The order of the circuit court is affirmed, and the cause remanded for further proceedings.