Beekman v. Fulton & Montgomery Counties Farmers' Mutual Fire Insurance

Parker, P. J.:

Daniel Mosher had a life estate in a small farm and the house and barn thereon situated. He insured the buildings thereon in his own name in the defendant company—the barn for $200 and the house for $600. In the application and policy the property was described as “ his,” and the agreement of the company was that in the event of loss it was to pay him. On October 16,1898, such house was totally destroyed by fire, and the action is brought by said Mosher’s assignees to recover upon such policy the amount of such insurance. Several issues were set up in the answer and litigated upon the trial, but at the close of all the evidence the defendant moved that the court direct a verdict in its favor on three grounds then stated. The court seems to have denied this application but to have then held that the plaintiffs could recover only the value of Mosher’s life estate in the property destroyed and that there was no proof in the case of that value. But, inasmuch as a tender of $280 before suit brought was set up in the answer, and it then appearing that such sum was paid into court and was still there awaiting its order, a verdict for that amount was directed in favor of the plaintiffs. No exception was taken by the defendant to the denial of its motion, nór to this disposition of the case andño appeal has been taken by it from the judgment entered, on such verdict. Judgment was entered in favor of the plaintiffs that they recover such "sum of $280, less the defendant’s costs, .which are charged against the same; and from that judgment this appeal is taken.

The only question presented to us,- therefore, is whether such disposition of the case has been prejudicial to the plaintiffs.

■ It is urged by the defendant that Mosher’s interest in -the house, Being the right to usé it during his life only, the value of such right at the time of the fire measures his insurable interest therein,- and it would ascertain the value of such right by ascertaining the difference in value of the use of the farm with and without the house upon it during Mosher’s life, and that difference it claims is the extent of his insurable interest. It further claims- that Mosher could recover no more than the amount of such insurable interest, and that having omitted to give any proof of its value, the ruling the trial court was correct, It is not distinctly stated how the duration of Mosher’s life is to be ascertained; but, as I understand the argument, the Northampton tables may be put in evidence to establish that fact.

If this claim correctly defines the extent of Mosher’s right to recover and the proper method of ascertaining it, there were not facts before the jury'sufficient to base a verdict upon, and the ruling of the trial court has worked no prejudice to the plaintiffs.

But the plaintiffs claim that, even 3 Mosher’s right to recovér is limited to the pecuniary value of his right to use the house during his life, there were facts before the jury from which they might have ascertained that value -and fixed it at a much greater figure than the verdict which the. court directed. The ages of both Mosher and his wife were proved. There was also evidence tending to show the value of the house, varying from $1,200 to $600. On these facts the plaintiffs claim that it was' also lawful for the jury to use the Northampton tables without their being formally put in evidence; and hence that all facts necessary to establish the value of Mosher’s life estate in . the house, in accordance with- the provisions of Supreme Court rule No. 70, were before the jury; and that hence it was error for the court to take that question from them.

It may be conceded that such tables could be used by the jury without being formally read in evidence (Davis v. Standish, 26 Hun, 608, 616; Wager v. Schuyler, 1 Wend. 553); but I am of the opinion that the plaintiffs’ method of ascertaining the value of Mosher’s right to the use of the house for life is not the correct one. I can see no propriety in arbitrarily assuming that the value of the annual use of the house to Mosher was five per cent on the cash value of the house itself. Such a rule is applicable to sums which are invested, and to the interest on which the life tenant is entitled. And rule 70 of the Supreme Court is made applicable to no other. Upon the question as to what the annual use of a house is worth, no such arbitrary assumption should be tolerated. Such use depends upon the varying circumstances of each case ; and in each case proof should be made of its actual annual value. The tables may be used to ascertain the probable duration of the life (Schell v. Plumb, 55 N. Y. 592; Sauter v. N. Y. C. & H. R. R. R. Co., 66 id. 50), but the method of computation referred to in rule 70 has no application to this case.

There were, therefore, not sufficient facts before the court to enable the jury to properly ascertain the actual value, at the time of the fire, of Mosher’s right to use the house during his life; and, if that value is to fix the plaintiffs’ right of recovery,' the trial court did not err to their prejudice in directing the verdict which it did direct.

But the plaintiffs further claim that Mosher was not limited in his recovery under this policy to the present worth of Ms right to use the property insured during his life. There is nothing in the transaction indicating that Mosher intended to insure for himself and the remainderman, and hence the rule that would fix the .amount of his recovery in such a case cannot apply to this. (Waring v. Indemnity Fire Ins. Co., 45 N. Y. 606.) Under the contract he is insured as the owner and at a figure that is evidently based upon the property’s full estimated value. Ro information was given by Mosher that his interest in the premises was anything less than that of an absolute owner, and I think from the evidence we must assume. that the defendant supposed he was such owner and intended to insure him as stich. But “ the party applying for insurance is not hound to disclose the nature or extent of his interest to the insurer unless requested. It may be shown by parol to exist, and the company must pay its value to the extent of the amount named in the policy.” (Cross v. National Fire Ins. Co., 132 N. Y. 136.) Hence, this policy was a valid one. But the defendant’s obligation tinder it does not extend beyond Mosher’s insurable interest in the house destroyed.' As to what that interest is, I am of the opinion that it. must be confined to the actual value, at the time of the fire, of Mosher’s right to use the same during his life. The value of the use does not depend upon the cost of construction. Locality and surroundings in every case determine the value of the use. Hence, stifficient facts must be proven, by the ordinary method of proof, to establish that value. No such facts were shown in this case and hence there were none for the jury to pass upon. This view of the case leads to the conclusion that no error was committed upon the trial prejudicial to the plaintiffs, and the judgment appealed from must be affirmed.

All concurred, except Smith and Edwards, JJ., dissenting.