Marshal v. American Guarantee Mutual Fire Insurance

BLAND, P. J. The petition alleged, in substance, that the- defendant is a fire insurance company organized under the general insurance laws of this state; that on July 27, 1897, defendant insured plaintiffs dwelling house situated in the village- of Stoutland, Laclede county, against loss by fire for a term of six years in consideration of $36, then and there paid by plaintiffs and received by défendant; that on the thirty-first day of December, 1897, the building being still the property of plaintiffs and so insured, was wholly destroyed by fire, of which plaintiffs immediately gave written notice to defendant, and thereafter, and within the time provided for by the policy, made out written proofs of loss and forwarded the same to defendant at its home office in the city of St. Louis; that defendant refused to pay the loss after the same became due and payable, and judgment was prayed for the amount of the insurance. [22] Answer. [21] Bor answer the defendant informed the court that it is a mutual fire insurance company, organized and doing business under the laws of the state of Missouri; admitted the issuance of the policy sued on, and then proceeds to inform the court that plaintiff Marshal made a written application to defendant for the insurance, in which he warranted the cash value of the building to be $800 when it was not worth over $300. And for further answer defendant alleged the policy to contain a clause that in the eA^ent of disagreement as to amount of loss, the same should be submitted to arbitration and that plaintiff refused to comply AAdth this provision of the policy; also that under the terms of the policy the defendant had a right to rebuild, and that it Avas the duty and obligation of the plaintiff under the terms of the policy to furnish plans and specifications of the building destroyed, [22] when requested so to do by defendant, to enable defendant to intelligently exercise its option, and that plaintiff refused to furnish plans and specifications when requested so to do by defendant, and thus denied defendant of the right to exercise its privilege. The answer alleged that the building was not in Laclede county, and that there was no village of Stoutland in Laclede county; also that the plaintiff refused to furnish further proofs of loss on the demand of defendant, ‘as he was bound to do under the terms of the policy, and further informed the court that plaintiff was a member of the defendant company, and should not recover an amount exceeding the actual value of his house at date of loss; $300, alleged fraud in the procurement of the policy, and denied every other allegation in the petition. On motion of plaintiff that part of the answer setting up over-valuation was stricken out. The cause was submitted to the court sitting as a jury, who after hearing the evidence, gave the plaintiff judgment for $569.40. From this judgment defendant, after an unavailing motion for new trial, duly appealed. [24] Admissibility of proof of value of the property. [22] The evidence adduced by plaintiff tended to prove the allegations of the petition. Defendant offered to prove that the actual cash value of the building insured at the time of the fire was $290, which evidence the court excluded, to which ruling defendant saved an exception. The policy contained the several provisions alleged in the answer and the application — made a part of the policy — provided that the statement of the cash value of the building to be $800 should be taken as a warranty that it was of that value. No evidence was offered by defendant that the property was not situated as described in the application and policy; on the contrary plaintiff proved that it was situated in the village and county alleged. The defendant asked declarations of law in line with its several special defenses, which were refused. No declarations of law were asked or given on the [23] part of plaintiff. Appellant seems to be laboring under the delusion that it is exempt from the general statutes of the state applicable to fire insurance companies. We find nothing in the record to substantiate the contention. Town mutual fire insurance companies are exempt from these general statutes, when organized for the sole purpose of insuring the property of the members (Acts of 1895, page 200), but their businesss is confined to the congressional districts in which they are organized, until they shall have $100,000 worth of property or more insured, when they may do business in any of the towns and* cities of this state. It is not averred in the answer that defendant is a town mutual company nor that it is authorized to do business in Laclede county, nor is there any evidence in the record tending to establish either of these facts. Its name indicates that it is not a town mutual company, and we must assume that it is a mutual company organized under the provisions of chapter 89, Revised Statutes of 1889, in the absence of any averment or proof to the contrary. Being governed by the general statutes concerning insurance the policy sued on is a valued one (R. S. 1889, sec. 5897), and the loss being a total one the measure of plaintiff’s damages is the amount for which the property was insured, less any depreciation from the date of the policy to time of destruction by fire. Baker v. Ins. Co., 57 Mo. App. 559; Williams v. Ins. Co., 73 Mo. App. 607; Havens v. Ins. Co., 123 Mo. 403. The clause in the policy agreeing to submit amount of loss to arbitration is in contravention of the statutes and is nugatory (authorities cited, supra). Likewise is the option retained by the appellant to rebuild in case of total loss in contravention of the statutes, and therefore not available as a defense. Murphy v. Im. Co., 62 Mo. App. 498; Williams v. Ins. Co., supra. There was no error in excluding the evidence offered by defendant [24] to prove the value of the property. This, under the statute, was not an open question. The objection that the petition fails to allege that plaintiff was the owner of the property at the date of the loss, is without merit; this allegation is directly made in the petition. No evidence was offered tending to prove that the policy was affected in the least by any fraudulent representations made by the plaintiff. No reversible error is discoverable in the record, and we affirm the judgment. All concur.