Holter Lumber Co. v. Fireman's Fund Insurance , 18 Mont. 282 ( 1896 )

Hunt, J.

—The appeal in this case is ‘ ‘ from the order of nonsuit and judgment for costs.” Respondent contends that an order for nonsuit is not appealable. But it is laid down in Leese v. Sherwood, 21 Cal. 152, that a dismissal of an action is in effect a final judgment in favor of the defendant. “It is a final decision of the action as against all claim made by it, although it may not be a final determination of the rights of the parties as they may be presented in some other action. ’ ’ See, also, Zoller v. McDonald, 23 Cal. 136, and McLeran v. McNamara, 55 Cal. 508. Hayne on New Trial and Appeal, page 559, in note 21, puts-this quaere: “Is not an order granting a nonsuit a final judgment? Such an order amounts to a dismissal of the action, and we have seen that a dismissal is a final judgment. ’ ’

Here the court granted a motion for nonsuit, dismissed the suit, and ordered and adjudged that respondent recover its costs. This was a judgment. (Hayne on New Trial and Appeal, page 555, and note.) The only possible thing left to do was the entry of a more formal judgment by the clerk. Surely, the effect of the ruling of the court was that of a final decision against plaintiff, and we think he could appeal from such an order, as a judgment.

Contracts of insurance ought to be construed to carry out the intention of the parties, as expressed or indicated by their language used. (Beach on Insurance, § 546.) Such contracts having for their object indemnity, the rule is that they are to be construed liberally to carry out such objects. “No rule in the interpretation of a policy is more fully established, or more imperative and controlling, than that which declares that in all cases it must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to the indemnity, which in making the insurance was his object to insure.” (May on Insurance, § 175.)

It is also an established principle in the construction of fire insurance policies, as well as other contracts, that the words of the agreement are to be applied to the subject matter about which the parties are contracting at the time, the presumption being that such matter is in the minds of the parties at the time of their agreement. (Wood on Fire Insurance, page 145.)

Bearing these principles in mind, was the action of the lower court in granting a nonsuit correct ? The evidence tended to show that in April, 1892, Mr. Gibson, the defendant’s agent, solicited insurance, from Bussell, owner of the premises; that Bussell told him that he intended to move the house he was then living in to the lots described in the policy, and would connect it with the greenhouse then being constructed on said lots described in the policy. This building to be moved was a one-story house, with four rooms, attached to a greenhouse. The policy and description therein were made out by the agent, and were upon J. H. Bussell’s “ one-story frame, shingle-roof building, and additions, while occupied as a dwelling and greenhouse, situated on lots Nos. 5, 6 and 7, block 24, on the -side of-avenue, and between-street, and in Boston and Great Falls Addition to-street, Great Falls, Montana. Other concurrent insurance permitted. Permission granted to complete.5 ’

After the dwelling- house was moved to the lots, Bussell received his policy. The dwelling house was moved to one of the lots described in the policy, but was not connected with the greenhouse, which stood on the furthest of the three lots so described. The fire destroyed a one-story frame house, the same house that was removed from the place where it had stood when the agent solicited the insurance, but with additions thereto, which made it a nine instead of a four room house. The identity of the property described, whether the building burned was covered by the policy, was the main question. That was one of fact, and we think was erroneously decided. (Southwest Lead & Zinc Co. v. Phœnix Ins. Co., 27 Mo. App. 446.) Parol evidence is admissible, not to vary or contradict the terms of the policy, but to explain it, — to get at its true meaning. (Tesson v. Atlantic Mut. Ins. Co., 40 Mo. 33, 50 Mo. 112; Beach on Insurance, § 552.) “The general rule is that the construction of the policy of insurance is a question of law for the court to determine, and warranties as we shall see hereafter, must be strictly enforced, regardless of their materiality; but when the language employed to describe the thing warranted is not free from ambiguity, or when it is equivocal, and its interpretation depends upon the sense in which the words are used, in view of the subject to which they relate, the relation of the parties, and the surrounding circumstances properly applicable to it, the intent of the parties becomes a matter of inquiry, and the interpretation of the language used by them is a mixed question of law and fact. Such a question is to be submitted to the jury under appropriate instructions.” (Richards on Insurance, § 45.)

On a ruling upon a motion for a nonsuit, the law regards the issues proved which the evidence tends to prove. (Soyer v. Water Co., 15 Mont. 1.)

In our opinion, the plaintiff made out aprima facie case of tbe loss by fire of his one-story, frame, shingle-roof dwelling house, situated upon the lots, and described in the policy. It follows that the court ought not to have granted a nonsuit unless it appeared that defendant’s additional ground of motion was well taken, — that the building destroyed by fire was never occupied as a greenhouse. But we do not think that, prima facie, the defendant is relieved from liability because the frame, shingle-roof building and additions were not occupied for the two purposes, — a dwelling house and a greenhouse. The evidence tends to prove that the agent and the insured understood that the frame house was for dwelling purposes, while the greenhouse was for its proper purposes, and that the policy was made out with that understanding. At least, there is nothing in the policy inconsistent with the evidence to that effect. Furthermore, .upon the whole evidence in the record, the conduct of the company, by its agent Gibson, who was in Great Falls after the fire, tends to prove that the agent intended to insure the particular house destroyed. By expressly waiving formal proofs of loss after the fire, and saying that the defendant was ready to pay its loss, he seems to have identified the house destroyed as the house insured. Of course, if the hazard were increased by not connecting the house and greenhouse, and such increase were without defendant’s consent, different questions would arise. But those matters are not now before us.

The plaintiff sought to introduce evidence of the value of the property destroyed, by asking for opinions of builders and others upon descriptions given. Much of this testimony was excluded. The rule laid down by the supreme court of Colorado appears to be just, and to be approved of by late authorities. It is this : ‘ ‘ The measure of damages in an action for such a loss is the value at the time of the loss; and, to arrive at that, the original cost, the cost of a like building at the time of the trial, and the difference in value between the house burned and a new one by reason of age and use, are all proper suejects of inc for new trial. subjects of inquiry.” Judgment reversed, and cause remanded

Reversed.

PeMBERTon, C. J., concurs. De Witt, J., not sitting.