Branigan v. Jefferson Mutual Fire Insurance

GOODE, J. (after stating the facts as above). — 1. The action was well brought in the name of the assured. In some jurisdictions, including the Federal courts, it must'be brought that way whether the loss is payable to a mortgagee or trustee. 4 Joyce, Insurance, sec., 3611; Friemansdorf v. Ins. Co., 1 Fed. 68. In this State the mortgagee may sue so long as the debt remains unpaid; but so may the mortgagor, who is regarded during that period as the trustee of an express trust. Anthony v. German Am. Ins. Co., 48 Mo. App. 65. 2. Proofs of loss were waived by the company; for its adjuster conferred with the insured about the loss without demanding proofs, and conceded the company’s liability; a written agreement to arbitrate the amount of the damage was executed, and no blank proofs were furnished the plaintiff. 3. The serious defense is based on the above-mentioned statute which reads thus : “'Whenever there is a partial destruction or damage to property covered by insurance, it shall be the duty of the party writing the policies to pay the assured a sum of money equal to the damage done to the property, or repair the same to the extent of such damage, not exceeding the amount written in the policy, so that said property shall be in as good condition as before the fire, at the option of the insured. ” E. S. 1899, sec. 7971. At common law an insurer had no right to repair or rebuild instead of paying the loss, unless the right wa,s reserved in the policy; but reservations of that sort became general, and by virtue of them companies [74] nearly always enjoyed the option of restoring the injured property to the condition it was in before the fire. 4 Joyce, Insurance, sec. 3152; Nordike v. Ins. Co., 112 Ind. 535. The quoted statute must have been intended to nullify clauses of insurance contracts giving companies the privilege of repairing property covered by their policies if a partial loss occurred, and to confer on the insured the right to exact a cash indemnity despite such clauses; at least in instances when the benefit of the statute is not expressly waived. That construction was-put on the enactment by this court in Ampleman v. Insurance Co., 35 Mo. App. 308; and in several decisions on the cognate section requiring payment of the full amount of the policy when a loss occurs, whatever stipulation the policy may contain for ascertaining the actual loss, a similar construction was given. Havens v. Ins. Co., 123 Mo. 403; Williams v. Ins. Co., 73 Mo. App. 607; Baker v. Assurance Co., 57 Mo. 559; The effect of the statute is that the company must pay a partial loss in money if the insured says so, although its policy reserves to it the privilege of repairing. In the present case the defendant company asserts that it had a competent builder whn would have completely repaired the plaintiff’s house for one hundred and sixty-three dollars; that it requested permission to make the repairs, and on plaintiff’s refusal, tendered him that sum; all of which there is evidence to establish. But does it follow necessarily that the defendant fully complied with the statute? We think not. The defendant had no right to repair against plaintiff’s will, and he was unwilling. What was the company bound to do then? The statutory answer is that it was bound to pay the assured a sum of money equal to the damage to his property. Was the sum tendered equal, to the damage? is the vital question, and the testimony bearing on it is conflicting but preponderates to the plain [75] tiff’s side. The fact that Lynds offered to make the needed repairs for one hundred and sixty-three dollars cuts no figure in the case except as evidence in connection with his testimony, to show the amount of the damage; since the company had no right to repair unless Branigan elected that it should, who elected, instead, to take cash. Defendant contends a hardship” will be imposed if it is required to pay more than it could have made the premises whole for; but the law with reference to which the contract was made gave it no right to make them whole, providing, instead, that it must indemnify the owner in money if he asked it. In all such cases if the parties can not agree on what will be indemnity and refuse to arbitrate, a court or jury must decide the dispute on evidence; and if a contractor swears the premises could have been completely repaired for a certain sum, that testimony becomes part of the evidence to be weighed, but is not conclusive. The case was correctly decided by the circuit court in the first instance; so the order granting a new trial is reversed and the cause remanded with a direction to reinstate the verdict and enter judgment thereon. Bland, P. J., and Reyburn, J., concur.