Palatine Insurance v. Nunn

Whitfield, C. The policy of insurance in this case conthins this clause: “This company shall not be liable, beyond the actual value destroyed by fire, for loss occasioned by ordinance or law regulating construction or repair of buildings.” The insurance was for two thousand five hundred dollars. The property was worth about three thousand five hundred dollars. The damage inflicted by fire was about fourteen hundred dollars. The building was a frame building, within the fire limits of the city of Jackson. The insured was prohibited from reconstructing the building by the ordinances of the city governing the repair and construction of buildings within the said fire limits. It is thoroughly well settled that in such case, where the loss by fire is partial, but the injury by fire has rendered the building unfit for use for the purpose for which it was constructed, and there are ordinances or there is a law prohibiting its' reconstruction, the loss in such eases is a total loss. This is very clearly set forth in the case of Sandberg v. St. Paul & D. R. R. Co., 80 Minn. 442, 83 N. W. 411. Indeed, we do not understand the learned counsel for appellant to deny this proposition. The exact contention of .the insurance company is that it and the appellee, by the clause above quoted, expressly contracted that the appellant should not be liable, beyond the actual value destroyed by fire, for loss occasioned by ordinance or law regulating construction or repair of buildings, and the appellant tendered the amount of fourteen hundred dollars, which was the loss inflicted directly by fire. The sole question before us on this the only material contention in the case is whether or not this clause in the contract of insurance was written out by. virtue of 'the provisions of our valued policy law. [503] Section 2592 of the Code of 1906. The question is not one at all free from difficulty, and we have given it the most careful consideration. The authority chiefly relied on by the learned counsel for appellant is the case of Hewins v. London Assurance Corporation, 184 Mass. 178, 68 N. E. 62, and that case clearly holds that the defense here would be good, the contract stipulation referred to being valid, in a state where there is no valued policy law substantially like ours. We do not think the statute of Massachusetts, which is claimed to be like ours, is so substantially, and for that reason we do not regard this authority as' controlling in this case. We have found one case, New Orleans Real Estate Mortgage & Securities Company v. Teutonia Insurance Company of New Orleans, to he found in 54 South. 466, which does squarely hold, on a valued policy law substantially like ours, though not identical in its phraseology, that the very clause here relied on, to-wit, for loss occasioned by ordinance or law regulating construction or repair of buildings, is written out of the policy by the valued policy law of Louisiana.' While the court does say, in its original opinion, that it did not wish to be understood as holding that thé exemption from the liability clause in question was not inconsistent with the valued policy law of Louisiana, and that it expressed no opinion on that point, we do not well see how the judgment in the case could have been what it was, without holding that it was so inconsistent; and, indeed, this is made clear in the judgment rendered by the court on rehearing, in which, at the foot of page 469, the court does meet the issue squarely, and expressly holds that the valued policy law did write the exemption clause but of the policy, and that the statute so writing it out was one affecting the public policy of the state. After the maturest thought we can give the matter, we are constrained to follow this decision of the supreme court of Louisiana, and hold that the clause of exemption [504] from .liability, relied on in tbe policy before us, was written out by our valued policy law referred to above. Affirmed. Per Curiam. Tbe above opinion is adopted as tbe opinion of tbe court, and for tbe reasons therein indicated, tbe judgment of tbe court below is affirmed.