The state republican. (Jefferson City, Mo.) 1871-1896, 1895-04-18

appraisers made report, fixing the
value of the building destroyed at
$1,000. The defendant offered to
pay this sum, but plaintiff declined
to accept 1t as full satisfaction. 1t
is proper here to state that no evil
dence was offered tending to prove
any depreciation of the property
insured after the date Of the policy.
On the foregoing facts, the trial
court, sitting as jnry, gave judg
ment for the plaintiff in the SUN OF
$1,000, and he has appealed to this
court claiming that he ought to have
been allowed $1,000, the amount
named in the policy.
Section 1897 of our insurance
statute provides: "In all suits
brought upon polioias of inourance
against loss or damage by fire here
after issued or renewed, the defend
ant shall not be permitted to deny,
that the property insured thereby
was worth at the time of the issuing
of the policy the full amount insured
therein on said property; and in
case of total loss Of the property
insured, the measure of damages
shall be the amount for which the
property was insured, less whatever
depreciation in value, below the
amount for which the property is
insured, the property may have sus-
tanned between the time of issuing
the policy and the time of the loss,
and the burden of proving such de-
probation shall be upon the defend
anti
If now the plaintiffs measure of
recovery should be settled by the
foregoing section, then clearly he is
entitled to the full amount named in
the policy; for it is admitted that
the building was total loss, and
there is nothing in the evidence
tending to prove that there was any
depreciation in the value thereof,
between the issue Of the policy and
the date of the fire. If there was
any such depreciation, it was incum-
bent on the defendant to Irove it.
The only testimony in relation to
that matter was that of the plaintiff
himself, who testified that the build
ing was in a better condition and
more valuable at the time of its de-
struction than whel the policy was
taken out.
The above quoted statute now
must be considered and given effect
as if bodily incorporated in the
terms of the policy; and SO consid-
cred it fixes the amount of the
Of the recovery, unless, indeed
defendant can secure reduction oil
the amount by invoking that por'
ton of the contract which appar-
emily permits it to dispute the value
and hold the insured award o.
appraisers appointed by the parties
according to the terms OF the policy
The statute above quoted ant
conclusively settled the amount o
plaintiffs loss; the arbitration feat.
ure of the policy provided for the
payment of less amount. An in.
consistency then clearly appeari
between the provision of the policy
and the statute, the question then is
by which shall the rights of the
parties be determined? The answer
to this is that the policy of the Law
must be enforced; the agreement t.
arbitrate that which has already
been settled was without considera
alton and must be rejected, leaving
the statutory obligatlon on the de
fendant unimpaired and absolute
Reilly VS.. Franklin Ins. Co, 43 Wis
446; Appleman VS.. Citizens Ins. Co
So NJ. A., 3OS.
1t follows then that the trial cour
enormously fixed plaintiffs damage
at only $1,000 instead of 81 200, tn
amount named in the policy.
The judgment then will be re
versed and cause remanded witt
directions to enter judgment TO
plaintiff in the sum of 81, 500 wit
interests and costs.
All concur. T. A. GILL.