Hamburg-Bremen Fire Insurance v. Garlington

Citations

• 66 Tex. 103
• 18 S.W. 337
• 1886 Tex. LEXIS 455

Syllabus

<p>1. Insurance—Total loss—Effect—If an insured building is so injured by fire that it ceases to be, within the meaning of the law, a building, the policy becomes a liquidated demand against the insurance company for its full amount. (R. S., art. 2971; Queen Ins. Co. z>. Jefferson Ice Co., 64 Tex., 578.)</p> <p>2. Same—Total loss defined—A total loss does not mean an absolute extinction. The question is not whether all the parts and material comprising the building are absolutely and physically destroyed, but whether the building has lost its identity and specific character as a building. (Following Williams v. Hartford Ins. Co., 54 Cal., 450, and citing other authorities.)</p> <p>3. Same—Liability—Insurance of defective building—Effect—A building had been injured by fire, and while in its injured condition was insured as a “ building shortly after it was totally destroyed by fire. In an action against the insurance company. Held:</p> <p>(1) That in the absence of averment and proof of fraud in procuring the policy, the structure would be held to have been a building at the time the policy issued.</p> <p>(2) The fact that the total loss resulted from both fires could not affect the liability of the makers of the policy in force at the time the total loss occurred.</p> <p>4. Same—Partial destruction—City ordinance—Effect—A city ordinance prohibited the reconstruction or repair of wooden buildings, situated within fire limits, which had been injured by fire to the extent of one-third their value. An insured building was partially destroyed, and an application to repair it was refused by the common council, in accordance with the regulations of the ordinance. Held, That the parties having contracted in view of the ordinance, the fire must be deemed the proximate cause of the loss, and the loss total. (Following Brady v. Ins. Co., 11 Mich., 445; Brown v. Ins. Go., 1. Ellis & Ellis, 853.)</p>