substitution had been made when the money was accepted and the policy surrendered. Where an insurance company writes insurance on condition that insured shall procure other insurance in a certain amount, the company only assumes such proportion to the amount of insurance actually taken, in case it is less than required, as the amount of its policy bears to the total amount of other insurance which insured agreed to take (Armour v. Reading Fire Ins. Co., 67 Mo. App. 215). And where a policy provides that insured shall maintain insurance on the property to the extent of four-fifths of its cash value, and, in case of failure so to do, shall be a co-insurer to the extent of such deficit, insured is either bound to procure from others, or himself carry, insurance to such an extent that the total insurance amounts to four-fifths of the value of the property (Chesebrough v. Home Ins. Co., 61 Mich. 333, 28 N. W. 110). But in Hartford Fire Ins. Co. v. Shlenker, 80 Miss. 667, 32 South. 155, it was held that under a law providing that in case of loss by fire of insured personal property, where the same, after issuance of the policy, is constantly changed in specifics and quantity, in the course of trade, only the actual value of the property at the time of loss may be recovered, not to exceed the amount expressed in the policy, where there was a policy of $2,000 on a stock of cotton worth $15,000, of which $4,000 worth was destroyed by fire, the insured could recover the $2,000, notwithstanding conditions in the policy expressly waiving all benefit under such law, and providing that the property should be insured to its full value, and that in case of loss the insurer should be liable only for such portion of the loss as the amount of the policy bore to the full value of the property insured at the time of the fire. 7 6. PLEADING AND PRACTICE WITH REFERENCE TO EXTENT OF LIABILITY IN GENERAL. (a) Pleading. (b) Issues and proof. (c) Evidence. (d) Trial and review. (a) Pleading. It is incumbent on an insured to aver the extent of his loss (German Fire Ins. Co. v. Von Gunten, 13 Ill. App. 593). And a petition Laws Miss. 1894, c. 63, § 1, as amended by Laws 1896, c. 56. on a policy covering several items specifically, which alleges only the loss of one item, will not permit a recovery for another item (Shaver v. Mercantile Town Mut. Ins. Co., 79 Mo. App. 420). But under an averment of a total loss plaintiff may recover for a partial loss (Peoria Marine & Fire Ins. Co. v. Whitehill, 25 Ill. 466). In a suit on an open policy, the value of the property at the time of the loss must, of course, be alleged (Phoenix Ins. Co. v. Benton, 87 Ind. 132). And an allegation that plaintiffs had an interest in the property to an amount exceeding a sum named, and that they were the exclusive owners, is not a sufficient allegation of the cash value of the property (Royal Ins. Co. v. Smith, 8 Ky. Law Rep. 521). So, an allegation that plaintiff "had an interest" in the property insured to an amount exceeding the insurance is insufficient. Sappington v. St. Joseph Mut. Fire Ins. Co., 72 Mo. App. 74; Wright v. But an allegation that the property insured was totally destroyed, and defendant failed to pay plaintiff for the loss occasioned thereby, raises the question of value (German-American Ins. Co. v. Paul, 2 Ind. T. 625, 53 S. W. 442). And if a complaint states the amounts of the losses upon the various kinds of property insured separately, and demands judgment for the aggregate sum of such losses, this will be sufficient for the purpose of informing the defendant how much, and on what account, the plaintiff claims to recover (Hegard v. California Ins. Co. [Cal.] 11 Pac. 594). So, an averment that insurance was given on the property to the amount of $1,200, and that the property insured was totally destroyed, would seem to be a sufficient averment of value after verdict (Jones v. St. Joseph Fire & Marine Ins. Co., 55 Mo. 342). Likewise a petition stating a loss under a policy, and specifying the amount lost upon each of the articles insured, is not bad because it fails to allege value (American Ins. Co. v. Leonard, 80 Ind. 272). Likewise, a declaration which states that plaintiff was interested to the value of a certain sum is good on general demurrer (Knickerbocker Ins. Co. v. Tolman, 801 Ill. 106). Similarly, if the whole petition shows that the goods. destroyed were worth a given sum, and, being totally destroyed, plaintiff was damaged in such sum, it is not demurrable, as not stating a cause of action, however inartistic it may be in the fact (Shaver v. Mercantile Mut. Ins. Co., 85 Mo. App. 73). And though a petition may in some of its allegations confuse the value of the real and personal property insured, yet if, as a whole, it states that the personalty was insured for $1,500, and its value was $3,500, and the plaintiff was damaged in the last-named sum, and was entitled to $1,500 judgment, it is sufficient (Shaver v. Mercantile Mut. Ins. Co., 85 Mo. App. 73). The fact that a policy limits insured's recovery for a loss to the actual cash value of the property destroyed does not require insured to allege the cash value of the property destroyed. Hegard v. California Ins. Co. (Cal.) 11 Pac. 594; Osborne v. Phenix Ins. A petition in an action on a policy containing a pro rata clause need not allege what other insurance there was on the property, as this is a matter of defense. Etna Ins. Co. v. McLead, 57 Kan. 95, 45 Pac. 73, 57 Am. St. Rep. 320; In Ætna Ins. Co. v. Glasgow Electric Light & Power Co., 107 Ky. 77, 52 S. W. 975, it was held that the trial court erred in refusing defendant to file an amended answer relying on a co-insurance clause, though the amendment was not offered until the commissioner had filed a report showing that insured had not maintained the full amount of insurance required. But in Continental Ins. Co. v. Moore, 62 S. W. 517, 23 Ky. Law Rep. 72, it was held that the court did not abuse its discretion in refusing to permit defendant to file an amended answer disputing the valuation fixed in the policy, where the amendment was not offered until after a judgment in defendant's favor had been reversed on appeal, and until several years after the property was destroyed. (b) Issues and proof. An issue of fact is made as to the amount due on a loss under a policy for $1,000 where the complaint alleges that plaintiff "sustained loss in a sum much greater than the amount stated in the policy," and the answer denies that "plaintiff had sustained loss in the sum of $1,000 or any other sum" (Lancashire Ins. Co. v. Monroe, 101 Ky. 12, 39 S. W. 434). But a contention between the parties as to whether additional insurance has been taken, which would render the policy void, is not a "disagreement as to the amount of the loss" (Nelson v. Atlanta Home Ins. Co., 120 N. C. 302, 27 S. E. 38). A general allegation that certain insured property, otherwise fully described, was real property, did not require the insured to show that it was real property, and totally destroyed, and thereupon rely upon the valued policy law; but he could show its value without attempting to classify the property as real or personal (Granite State Fire Ins. Co. v. Buckstaff Bros. Mfg. Co., 53 Neb. 123, 73 N. W. 544). An answer alleging that plaintiff made no effort to protect the property after the fire, and that, if it had been properly cared for, the damage would not have exceeded $100, is good as admitting $100 damages, and setting out such facts as a defense to the excess only (Sisk v. Citizens' Ins. Co., 16 Ind. App. 565, 45 N. E. 804). But a denial in an answer that said "plaintiffs, by the fire in question, sustained an actual loss exceeding the sum of $4,000," is not tantamount to an admission that plaintiffs' loss was equal to that sum (Hiles v. Hanover Fire Ins. Co., 65 Wis. 585, 27 N. W. 348, 56 Am. Rep. 637). Where the insurer admits that the amount claimed by insured's statement is the share due, if it is liable at all, insured need not prove an adjustment nor the extent of his loss (Jacoby v. North British & Mercantile Ins. Co., 10 Pa. Super. Ct. 366, 44 Wkly. Notes Cas. 226). An answer which in one count alleges other insurance as a ground of avoidance, and in another asks to prorate other insurance, if any be found, does not allege the existence of other insurance as a basis for prorating the loss (O'Leary v. German-American Ins. Co., 100 Iowa, 390, 69 N. W. 686). Where the receipt and retention of proofs of loss by the company are relied on as an acquiescence and agreement as to the amount of the loss, testimony as to the value of the property is irrelevant (Everett v. London & L. Ins. Co., 142 Pa. 332, 21 Atl. 819, 24 Am. St. Rep. 499). And where a bill of particulars demanded in a suit on a policy covering a dwelling and household effects was obscure and evasive, and gave no additional information, it was error to admit proof of the contents of the dwelling, over an objection that the bill of particulars described the articles for which recovery was sought as "contents of house" (Knop v. National Fire Ins. Co., 101 Mich. 359, 59 N. W. 653). But a denial in toto of liability does not estop the insurer, if its liability is established, from contesting the amount of the loss, and requiring that it be proven by competent evidence (Penn Plate Glass Co. v. Spring Garden Ins. Co., 189 Pa. 255, 42 Atl. 138, 69 Am. St. Rep. 810). (c) Evidence. It is incumbent on an insured to prove the extent of his loss, where the undertaking is to make good all loss, not exceeding a specified sum (German Fire Ins. Co. v. Von Gunten, 13 Ill. App. 593). Likewise he must prove the value of the property destroyed (Hanover Fire Ins. Co. v. Lewis, 23 Fla. 193, 1 South. 863). And such proof is not waived by an agreement that preliminary proof of loss had been duly made (Home Ins. Co. v. Stone River Nat. Bank, 88 Tenn. 369, 12 S. W. 915). But in the case of a total loss of property covered by a policy distributing the insurance on various items it is not necessary to prove the amount of loss on each item separately (Improved Match Co. v. Michigan Mut. Fire Ins. Co., 122 Mich. 256, 80 N. W. 1088). The amount of the policy is not even prima facie evidence of the loss (Lion Fire Ins. Co. v. Starr, 71 Tex. 733, 12 S. W. 45). But evidence that one of the insurers had inspected the houses insured before the policy was issued, and another before the renewal thereof, fixing the relative value of the houses is prima facie evidence of the value at the time of loss (Virginia Fire & Marine Ins. Co. v. Feagin, 62 Ga. 515). An insured or any person acquainted with the value of the property destroyed at the time of the fire, while not qualified as an expert, may testify as to such value. Reference may be made to Baillie v. Western Assur. Co., 49 La. Ann. 658, 21 South. 736; Lycoming Fire Ins. Co. v. Jackson, S3 Ill. 302, 25 Am. Rep. 386; Graves v. Merchants' & Bankers' Ins. Co., 82 Iowa, 637, 49 N. W. 65, 31 Am. St. Rep. 507; Thomason v. Capital Ins. Co., 92 Iowa, 72, 61 N. W. 843; Names v. Union Ins. Co., 104 Iowa, 612, 74 N. W. 14; Reed v. Washington Fire & Marine Ins. Co., 138 Mass. 572; Continental Ins. Co. v. Horton, 28 Mich. 173; Livings v. Home Mut. Ins. Co., 50 Mich. 207, 15 N. W. 85; Bowne v. Hartford Fire Ins. Co., 46 Mo. App. 473; Western Home Ins. Co. v. Richardson, 40 Neb. 1, 58 N. W. 597; Meyerson v. Hartford Fire Ins. Co., 16 Misc. Rep. 286, 38 N. Y. Supp. 112; Rademacher v. Greenwich Ins. Co., 75 Hun, 83, 27 N. Y. Supp. 155; Phoenix Mut. Fire Ins. Co. v. Bowersox, 6 Ohio Cir. Ct. Rep. 1, 3 O. C. D. 321. Where an insured testifies as to value, his testimony presumably has reference to the cash value at time of loss (Erb v. GermanAmerican Ins. Co., 98 Iowa, 606, 67 N. W. 583, 40 L. R. A. 845). And insured's testimony cannot be discredited by a tax list sworn to by him, as that is an admission for a special purpose (German Mut. Ins. Co. v. Niewedde, 11 Ind. App. 624, 39 N. E. 534). Of B.B.INS.-196 |