FIRE INSURANCE POLICY.

#### † Phœnix Insurance Co. v. Luce et al.

[Lucas Circuit Court,

April 11, 1896.]

Haynes, Scribner and King, JJ.

X. What Constitutes a Structure Under Section 3643, revised Statutes.

Under the terms of an insurance policy describing *“*one boiler, engine, and apparatus pertaining thereto, contained in the five-story and basement brick metal roof Musee theater building, No. 240 Summit street, Toledo,” which boiler and engine were in fact built in the basement of said building and constructed upon permanent foundations, the boiler being inclosed by a brick wall, the court would be justified in instructing the jury that the same constituted a structure within the meaning of section 3643, Revised Statutes, under which in case of a total loss, the insurer is bound to pay the full insured value of the property.

*2112. A Boiler, and Engine Constitute a Structure.

The court in fact submited the question whether this was a structure to the jury under appropriate instructions and definitions, the jury having found under the charge of the court that the boiler and engine in question was a structure, their verdict upon the facts presented will not be disturbed.

3. Waiver oe Insurer to Insist on Payment oe Eull Value.

The parties, by voluntarily submitting the value of the property destroyed to arbitration, did not waive the right to insist upon the payment by the insurer of the full insured value of the property, since the provisions of the statute in question upon that subject cannot be waived or contracted away by the parties.

†

 Affirmed by Supreme Court; unreport ;d. Soeir, Shiuck and Burket, JJ. dis•ent, 59 O. S., 609.

King, J.

Action was Drought in the court of common pleas to recover upon a certain policy of insurance which had been given to the plaintiffs, covering the following property: “ One boiler, engine and apparatus pertaining thereto, contained in the five-story and basement, brick, metal roof ‘ Musee Theater ’ building, No. 240 Summit street, Toledo, Ohio.” The amount for which this property was insured was $1,500. The policy was in the usual form. It contained a provision, among others, that after a loss, if the parties could not agree upon the amount of that loss, each might select an appraiser, and if those two did not agree on the amount of the loss, they could select a third. This is a provision common to all or nearly all insurance policies, and of course is operative in any event and in any policy as to any loss that may occur upon property either real or personal, which shall be less in amount than what is termed in law a total loss: It is a very proper provision to insert, and either party would have the right to insist upon the carrying out of this provision regardless of any suit, if either claimed that there was a loss less than a total loss, because such loss becomes, in the very nature of things, the subject of appraisement — a subject, at least, for agreement between the parties, and if they can’t agree, then appraisement is the method which the parties may provide for determining the amount of the loss.

It is not claimed in this proceeding in error that the loss was anything other than a total loss, although there was a claim of that sort made upon the trial; but that claim is not here presented. So that we have a case of the total loss of this property.

After the loss, the parties proceeded under this provision of the policy to have the loss appraised, and the appraisers fixed it at $696.

The building in which this property is described as located was also insured in other policies to the amount of $30,000, which was adjusted and paid after considerable discussion, and this adjustment did not include anything for this property. Nor did this policy cover any other property than that contained in the description which I have read.

There were proofs of loss made out by the parties under the other policies, and in those proofs of loss they set out no other insurance upon the building than that decribed in the policies other than this one.

On the trial of the case in the court of common pleas it was claimed by the plaintiffs that they were not bound by this appraisement, but they were entitled to recover the face of the policy, if there was a total loss, under the provisions of sec. 3643, R. S., which provides that—

> “ Any person, company or association, hereafter insuring any building or structure against loss or damage by fire or lightning, by a renewal of £ policy heretofore issued, or otherwise, shall cause such building or Structure to be examined by an agent of the insurer, and a full descrip*212tion thereof to be made, and the insurable value thereof to be fixed by such agent; in the absence of any change increasing the risk without the consent of the insurers, and also of intentional fraud on the part of the insured, in case of total loss, the whole amount mentioned in the policy or renewal upon which the insurers receive a premium shall be paid, and in case of a partial loss the full amount of the partial loss shall be paid.”

This case was submitted to a jury under the charge of the court and upon the evidence, and the jury returned a verdict for the full amount of the policy. Tt is claimed now by the insurance company that that ■verdict is erroneous, as being against the law and evidence, because the court erred in its charge to the jury, and in refusing to give the requests to charge offered by the defendant below, and in giving the requests to charge presented by the plaintiffs below. The whole question made by these requests and by the exceptions to the charge resolves itself into the single one as to whether the court properly presented to the jury the question, whether this property so insured, and as the evidence aside from the policy of insurance described it, was, within .the meaning of sec. 3643, a structure.

The argument upon both sides has been very full, extensive and interesting, and the question not free from difficulty.

The policy does not undertake to say anything about this property except that there is a boiler and engine situate upon it; but the evidence in the case shows that a boiler and engine were placed in the basement of this building for the purpose of furnishing heat to it for the benefit of the different tenants that might occupy the building, and for the purpose of operating the elevator that was used in the building. Theywerelocatedinthebasement, and theboilerwas covered by a brick wall. It was insured as a boiler and engine, and as a mater of fact th.e agent made no valuation of it.

It is claimed by the plaintiff in error that the parties below treated this property in their description of it as personal property, or chattel property, in such a way and to such an extent that it could not be held to be a structure within the meaning of this statute; that they have said that it was a fixture; that they made no claim to the insurance companies carrying the $30,000 of insurance, of having insurance upon the boiler and engine as a part of the building; that they in their proofs of loss claimed that there was no other insurance, when they might have done so on the theory that this was a fixture and part of the building; but the most persistent claim is made that the parties themselves, by voluntarily permitting this to go to appraisal, have waived their right to insist upon the provisions of this statute. As a matter of law, this, of course, is not so; for the supreme court have certainly settled that question under this statute. In the decision in 47 O. S., *Insurance Company*v. *Leslie,*it is held that the parties themselves cannot waive these provisions of the statute, else they might contract them all away, and they might agree in their contract that notwithstanding the statute, they would still consent to, and permit, an appraisment of a loss that was a total loss. And it is decided that that statute was enacted as a measure of public policy. On page 417 they say:

> “ The statute cannot, we think, be treated as conferring upon the assured a mere personal privilege which may be waived or qualified by agreement. It has a broader scope. It molds the obligation of the contact into conformity with its provisions, and establishes the rule and neasure of the insurer’s liability.”

*213That opinion is quite an able one, and is supported by other authorities that are even more pointed than the principal case, upon the principle that the courts will enforce a statute of that kind, and will not permit the parties to waive or contract it away by any act of their own ; because if they can do it by one act the can do it by others, which would entirely invalidate the provisions of the statute; so they cannot in law waive that statute.

If this was a structure within the meaning of that statute, then it makes no difference what the parties have done about it, or what contract they have made with reference to it, or what- they did after the loss occurred, they have n ot waived their right to insist upon the payment of the full measure of their damages as fixed by law.

The fact that they consented to this appraisal might have two explanations, and properly so. First as I said before, if there was any pretense here that this was not a total loss, either party had a right to insist upon this provision of the contract, for the purpose of determining, if it was not a total loss, to what extent it was a partial loss. That must be the subject of agreement, and that may be the subject of arbitration. Second, It was claimed on the trial that a dispute arose before this appraisement was made as to whether this was a structure or not — whether it came within the terms of the statute. The insurance company said it didn’t; but the parties said it did; but the insurance company said then, “We will submit it to arbitration, and if it should be found it is not a structure, then arbitration will govern; if it is a structure, it will not prejudice you in any way.” And for this reason, it is said, the arbitration was agreed to and the appraisement made. I do not see that this evidence has any effect or cuts any figure in this case, one way or the other. So far as determining the question that is involved here is concerned, the court might just as well have ruled it out. I doubt very much whether the defendant below was entitled to have it admitted for any purpose.

The questions that have been argued circling around this question of structure, have related principally to the charge of the court, and we have examined that with a great deal of care. The first impression from hearing portions of it read, was, that the court had not submitted any question to the jury, or at -least had not really submitted the question that ought to have been submitted to the jury whether this was a structure ; but a careful reading of the charge convinces the court that that question is left to the jury, and, so far as we can determine, under proper definitions and instructions. Of course, when it came to the question involved, it was the duty of the court, as it will be conceded all around, to instruct the jury upon the definitions to be regarded by them in applying the evidence to determine whether this was a structure; and it was no doubt a matter of some difficulty. The court used some language which is capable of a construction which might not be altogether, correct, but taking the charge altogether, I don’t think that can be truthfully said of it.

The. court said to the jury that one question to be determined by them was, whether this was a structure, and proceeded to give them as a definition of a structure some of the elements embraced in the law, which, as, a matter of fact, the court read from an opinion <of the supreme court in 1 O. S., which was an opinion defining the criterions of fixtures to real estate or the fixtures to buildings. He then said, after giving to the jury the definitions contained in that opinion—

> *214“And you will inquire whether, upon the evidence before you, this insured property was so attached to this building, or this foundation, as to constitute it, within these rules, a fixture.”

That language, standing alone, would not present the question which the jury was to pass upon. They did not have to determine whether this was a fixture or not. But the court does not stop there. The court then proceeds and gives- three requests to the jury submitted by plaintiffs’ counsel in considerable detail a definition of what a structure is under the laws of Ohio. And then the court says in addition to that:

> “The engine and boiler alone, and unattached to the realty, so as not to become a fixture under the above rules, would be personal property and not a structure as contemplated in this statute ; and unless you find under the rules and upon the evidence before you, that it had so become a fixture, before or at the time that this policy was issued, then the terms and conditions of this policy-are valid and binding between the parties, the plaintiffs and the insurance company, and the award made by the appraisers, which is in evidence before you, binding and final, and the plaintiffs in this case can recover no more than the amount of the award.”

That was not prejudicial to the defendant.

> “But if you find under the rules which I give you, and upon the evidence before you, that this insured property was a structure in contemplation of this statute, and considered under these rules, then the statute entered into and became a part of the contract of insurance, and controls its construction and operation, and sets aside and renders inoperative every condition and provision of the policy in conflict with the statute.” , . So that the court finally winds up with the question which the jury are to pass upon; and when this charge is fairly considered, all that the court has said about fixtures has only been incidental to the discussion of the main subject to be defined, to-wit: a structure. And it will be conceded that some of the elements constituting fixtures are applicable to a definition of a structure. A structure is defined by Webster to be a “joining together, to construct, connected construction.” And in Anderson’s Taw Dictionary there is no definition except a couple of cases cited. A statute provided that an injury which was caused by a structure legally placed upon a highway by a railroad company, that the railroad company, and not the person who was bound by law to keep the highway in repair, should be liable. It was held that by a “structure” was meant some permanent stationary erection rather than an object like a moving car or an engine. And so where the plaintiff brought an action claiming that he had been injured by the erection of a structure, to-wit: a railroad, the court found that the railroad was a structure within the meaning of that statute, but that the person was not injured by the railroad, but was injured by an engine, which was not a structure. In another case, in 85 O. S. 568, the court held, under a statute authorizing lien on “any house, mill, manufactory, or other building, appurtenance, fixture, bridge, or other structure,” that it would not allow a mechanic’s lien upon a railroad as a structure, because the court reasoned, by describing a bridge, a building, and other things of a similar nature it excluded the idea that a railroad would not be liable to an ordinary mechanic’s lien. They do not undertake to discuss the question of what a structure is. They decided the case upon the grounds that I have suggested.

It then became a question of fact, under the definitions given by the court to the jury, whether this - engine and boiler, so located and established, and so fixed upon a permanent foundation, and so used, was a *215structure within the meaning of the insurance policy. The jury found that fact with the plaintiffs below. And in order to reverse the judgment on the charge of the court, we have to say either that the court was wrong in its definition of what a structure was, or that the jury were wrong in the application of the definition. We cannot say that the jury were wrong in the application of that definition; nor would I say that it was not entirely within the province of the court to have held, or to have charged the jury, that this boiler and engine as situated, was a structure within the meaning of this statute. Instead of the fact that this was insured separately being an argument against this construction, it seems to me an argument in favor of it. It was insured separately as a boiler and engine situated in a place where it was to remain, irremovable — it was to remain during the terms of the contract. Necessarily that made it permanent, that made it fixed, that made it annexed to the realty. That distinguished it from anything that was movable — made it a permanent and fixed erection, or construction, at this place. So I think the court would have been entirely justified in saying that this was a structure within the meaning of this statute. But as the court left that to the jury, we say that the jury were justified in the conclusion at which they arrived, that it was a structure. And the theory upon which the court gave this explanation to the jury was, we think, correct. That being so, all the requests submitted by the insurance company were properly refused, since they fairly and clearly proceeded upon the directly opposite theory, and assumed certain things which, if given to the jury, must of necessity have compelled the jury to have found a different verdict.

*Doyle &*Lewis, for Plaintiff in Error.

*Brown, Geddes & Tyler,*for Defendants in Error.

The judgment is therefore ¡affirmed.