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nental Ins. Co. v. McCulloch, 15 Tex. Civ. App. 190, 39 S. W. Rep. 374; Western Assur. Co. v. Phelps, 77 Miss. 625, 27 So. Rep. 745. And see “Statutory Provisions."

RULE 43

Statute Fixing Amount of Loss, Makes it a Liquidated Demand.

Where a statute determines the amount of loss and claim, it is in legal effect a liquidated demand, and the insurance company has no right to call upon the assured to make an affidavit in regard to value; a false statement in such an affidavit is immaterial.

Sullivan v. Hartford Ins. Co., 89 Tex. 665, 36 S. W. Rep. 73, 25 Ins. L. J. 705, dismissing writ of error, 34 S. W. Rep. 999.

RULE 44.

Company Cannot Evade Statute Fixing Amount of Loss. It is not competent for an insurance company to evade the operation of a statute fixing or determining value or amount of loss to a building, by agreeing with its owner to call part of it, like machinery, personal property;' nor can a building erected on leased land, under a contract that it is to remain lessee's property and is removable at expiration of the lease, be claimed to be personal property, to evade operation of such a statute;- but building and machinery on a mining lease, to be used in the prosecution of mining operations, do not become real property within a valued policy statute.3

1. Havens v. Germania Ins. Co., 123 Mo. 403, 27 S. W. Rep. 718, 24 Ins. L. J. 321. And see Murphy v. New York Bowery Ins. Co., 62 Mo. App. 495.

2. Orient Ins. Co. v. Parlin & 0. Co., 14 Tex. Civ. App. 512, 38 S. W. Rep. 60.

3. Millis v. Scottish Union & National Ins. Co., 95 Mo. App. 211, 68 S. W. Rep. 1066.

RULE 45.

1

Burden of Proof of Modification Under Statute Fixing Amount

of Loss. The burden of establishing any modification under the operation and terms of a statute fixing value and amount of claim in event of destruction of building, like depreciation in value if allowed, or loss or value itself when statute makes amount of policy prima facie evidence only,” rests upon the insurance company.

1. Meyer v. Insurance Co. of N. A., 73 Mo. App. 166.

2. Des Moines Ice Co. v. Niagara Ins. Co., 99 Iowa, 193, 68 N. W. Rep. 600, 26 Ins. L. J. 378; Scott v. Security Ins. Co., 98 Iowa, 67, 66 N. W. Rep. 1054, 25 Ins. L. J. 581.

RULE 46. Effect of City Ordinances as to Repairing or Replacing Buildings

in Connection with Statute Fixing Amount of Loss. Where there is a valued policy statute, the loss may be made total thereunder by legal operative force of a city ordinance governing repairs or replacing of buildings;' and so a loss may be made total in effect by refusal of city authorities to give necessary permission to repair.

1. Hamburg-Bremen Ins. Co. v. Garlington, 66 Tex. 103, 18 S. W. Rep. 337; Larkin v. Glens Falls Ins. Co., 80 Minn. 527, 83 N. W. Rep. 409.

2. Brady v. Northwestern Ins. Co., 11 Mich. 425. Monteleone v. Royal Ins. Co., 47 La. Ann. 1563, 18 So. Rep. 472, 24 Ins. L. J. 531; O'Keefe v. Liverpool, L. & G. Ins. Co., 140 Mo. 558, 41 S. W. Rep. 922, 26 Ins. L. J. 888; Hewins v. London Assur. Co., 184 Mass. 177, 68 N. E. Rep. 62. See Rule 36.

2

And see

RULE 47.

Depreciation When Statute Makes Policy a Valued One. The fact that a statute makes a policy a valued one does not prevent of itself such amount being reduced

by depreciation in value from use, decay, or otherwise, as by accident or casualty; such difference in value arising by reason of an intervening cause should be allowed in determining the amount of loss; for this would not be a changing of value as fixed by the parties; the change would arise from a cause supervening, that is, outside of the act of the parties.

Gibson v. Missouri Ins. Co., 82 Mo. App. 515.

The Missouri statute, 8 1979 (see Statutory Provisions), makes policy valued. Siegle v. Phænix. Ins. Co.,

Mo. App. 81 S. W. Rep. 637. In effect as to personal property. Hanna & Co. v. Orient Ins. Co.,

Mo. App.

82 S. W. Rep. 1115. Though reduction in value of stocks of merchandise or the like may be established. Burge v. Greenwich Ins. Co., 106 Mo. App. 244, 80 S. W. Rep. 342.

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RULE 48. Effect of Fraud When Statute Fixes Amount of Loss — Contract

Severable. Where policy insured house and furniture in separate amounts, and the statute makes the amount of insurance on the former a liquidated demand, fraud in reference to the personal property does not make entire contract void; the policy is not rendered void as to the realty.

Sullivan v. Hartford Ins. Co., 89 Tex. 665, 25 Ins. L. J. 705, 36 S. W. Rep. 73. And see “ Construction.”

RULE 49.

When Building is a Total Loss. A building is a " total loss” or “wholly destroyed," within the meaning and operation of a statute fixing the measure of damage or amount of loss or claim in that event, when it loses its identity and specific character as a building, and becomes so far disintegrated that it cannot be properly designated as a building, although some parts of it may remain standing; or some of its materials remain in a more or less injured condition;' or the building has been so injured by the fire that it is unsafe and has to be torn down. Amount paid for a previous partial loss under the policy should be deducted.

1. O'Keefe v. Liverpool, L. & G. Ins. Co., 140 Mo. 558, 41 S. W. Rep. 922, 26 Ins. L. J. 888; Lindner v. St. Paul F. & M. Ins. Co., 93 Wis. 526, 67 N. W. Rep. 1125, 25 Ins. L. J. 848; St. Clara Female Academy v. Northwestern Nat. Ins. Co., 98 Wis. 257, 73 N. W. Rep. 767; Commercial Union Assur. Co. 1. Meyer, 9 Tex. Civ. App. 7, 29 S. W. Rep. 93; Liverpool, L. & G. Ins. Co. v. Heckman, 64 Kans. 388, 67 Pac. Rep. 879; Insurance Co. of N. A. v. Bachler, 44 Nebr. 549, 62 N. W. Rep. 911, 24 Ins. L. J. 481; Phænix Ins. Co. v. Port Clinton Fish Co., 14 Ohio C. C. 160; Oshkosh Packing Co. v. Mercantile Ins. Co., 31 Fed. Rep. 200; Williams v. Hartford Ins. Co., 54 Cal. 412; Hamburg-Bremen Ins. Co. v. Garlington, 66 Tex. 103, 18 S. W. Rep. 337; Havens v. Germania Ins. Co., 123 Mo. 403, 27 S. W. Rep. 718; Murphy v. Insurance Co. (Tex.), 54 S. W. Rep. 407; American Central Ins. Co. v. Murphy (Tex.), 61 S. W. Rep. 956.

2. Palatine Ins. Co. v. Weiss, 109 Ky. 464, 59 S. W. Rep. 509.

3. Lancashire Ins. Co. v. Bush, 60 Nebr. 116, 82 N. W. Rep. 313.

RULE 50.

When Building Cannot be said to be Totally Destroyed - Total

Loss Limitations.

C

Where the foundation and four walls of the building are left substantially intact and by expending about one-third the worth of the building before the fire it can be restored to its previous condition, it cannot be said to be “ totally destroyed,” even although the interior and roof are totally destroyed. It is not until the expense of repair exceeds one-half of the value of the building when repaired, that there may be a total loss; it is competent for the insurance company to prove the cost of repairing, and restoring the building to its original usefulness and strength; the proportion of its material left uninjured and capable of being used in reconstruction, the proportion of the building destroyed, that it could be rebuilt without tearing down; that the greater proportion remained uninjured and intact, and by replacing the damaged portion the building would be as good as new.?

1. Corbett v. Spring Garden Ins. Co., 155 N. Y. 389, 50 N. E. Rep. 282, 27 Ins. L. J. 606, revg. 85 Hun, 250; subsequent appeals after new trial, 40 App. Div. 628, 58 N. Y. Supp. 148, affd., 167 N. Y. 596, without opinion. And see Commercial Union Assur. Co. v. Meyer, 9 Tex. Civ. App. 7, 29 S. W. Rep. 93; Havens v. Germania Ins. Co., 123 Mo. 403, 27 S. W. Rep. 718, 24 Ins. L. J. 321, 26 L. R. A. 107.

2. Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. Rep. 1068.

RULE 51.

Total Loss as Applied to Several Buildings, One Entire Plant.

Where there are several buildings constituting one entire plant, and covered by one general description as building and building attached, the question or consideration of a “total loss,” must be applied to the

” structure as a whole.

Northwestern Life Ins. Co. v. Rochester German Ins. Co., 85 Minn. 48, 88 N. W. Rep. 265.

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A total loss is to be ascertained as of the date of the occurrence, and is determined by the following tests: a building is not a total loss unless it has been so far destroyed by the fire that no substantial part or portion of it above the foundation remains in place

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