
    Eck, Respondent, vs. Netherlands Insurance Company, Appellant.
    
      January 12
    
    February 10, 1931.
    
    
      The cause was submitted for the appellant on the brief of Wolfe & Hart of Milwaukee, and for the respondent on that of Robert V. Baker of Kenosha.
   Wickhem, J.

In the view the court takes o.f this matter it is not necessary to consider the sufficiency or validity of the proceedings for an appraisal. If there is evidence in the record to sustain the conclusion of.the trial court that there was a total loss by fire, within.the meaning of sec. 203.21, Stats., then the provisions of that section apply, and the amount of the insurance written in the policy is to be taken as the true value of the property when insured, and the true measure of damages when destroyed, and the provisions in the policy for an appraisal are inoperative and the proceedings of no effect upon the rights of the parties. Seyk v. Millers’ Nat. Ins. Co. 74 Wis. 67, 41 N. W. 443; Thompson v. St. Louis Ins. Co. 43 Wis. 459. The rule with respect to what constitutes a total loss or a total destruction in this state is set out in several Wisconsin cases. Seyk v. Millers’ Nat. Ins. Co., supra; Lindner v. St. Paul F. & M. Ins. Co. 93 Wis. 526, 67 N. W. 1125; St. Clara Female Academy v. Northwestern Nat. Ins. Co. 98 Wis. 257, 73 N. W. 767.

In St. Clara Female Academy v. Northwestern Nat. Ins. Co., supra, the court said:

“Total loss under the statute does not mean that the material of which the building is composed shall be annihilated or reduced to a shapeless mass; that when the identity of the structure as a building is destroyed, so that its specific character as such no longer remains and there is nothing left but the cellar walls and a dilapidated foundation, the loss is total within the meaning of the statute.”

The court cites with approval the case of Hamburg-Bremen F. Ins. Co. v. Garlington, 66 Tex. 103, 18 S. W. 337, where it was held that “total loss does not mean an absolute extinction of the building; that the test is whether the building has lost its identity and specific character, so that it can be no longer called a building.” The court also cites with approval Oshkosh P. & P. Co. v. Mercantile Ins. Co. 31 Fed. 200, where the court held that “wholly destroyed,” as used in the Wisconsin statute, “was considered and construed as not meaning more than such destruction of the building as that, though some part still remains standing, it cannot be longer designated as a building.”

On the subject of what constitutes a total loss there seems to be a conflict of authority, some courts holding that “there cannot be a total loss so long as the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the fire; and that whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the fire, would in proceeding to restore it to its original condition utilize such remnant as such basis.” 14 Ruling Case Law, p. 1302, § 476. In the St. Clara Female Academy Case it was- said:

“There are authorities to the effect that if there is any part of the building left, worth more in place than the cost of removing it, the destruction is not complete within the meaning of valued-policy statutes. . . . It is not considered that there is any legitimate warrant for such view in anything said by the court in its published opinions. . . . Our statute deals with the specific thing insured, not solely the value. Its purpose was not only to prevent frauds by over-insurance, but to remove the temptation, on the part of insurance companies, to demand and secure settlements for losses for less than the amounts called for by the contracts of insurance, where the structures insured have been, as such, substantially destroyed.”

From the testimony in this case offered by the plaintiff, we consider that the court could find that the roof of the building was destroyed and the sidings pretty thoroughly burned; that most of the studs, rafters, and joists were burned away; that the flooring on the second floor was badly burned, but remains in a condition which would enable one with care to walk upon it, or upon portions of it. There is testimony, apparently based on an estimate of usable materials remaining, that about fifteen per cent, of the building remains. A photograph was offered in evidence, and it was testified by plaintiff that this represented the appearance of the building after the fire. From this picture it is evident that the roof was completely destroyed, and the east gable and the entire front wall and front porch very badly burned. The original outlines of the building remain so that it at least can be said that one could recognize that it had been a building and determine its original shape. Has the building, as •the result of the fire, lost its character and identity as a building? We have concluded that the trial court was entitled to’ find on this evidence that it had. There is evidence from which the trial court could have concluded that the combustible material in the structure was largely destroyed or rendered useless by the fire and heat, and that although the walls were left standing, their utility and identity as walls were completely destroyed. Upon the test applied by other courts in ascertaining total loss, there was also sufficient evidence to warrant a conclusion that a prudent owner, uninsured, desiring such a structure as the one in question, would not, in restoring it, have utilized the remnants of this building.

We do not find it necessary to decide, and do not decide, that this was a constructive total loss by reason of the fact that a building permit was denied to the plaintiff to utilize the remains of the structure as a basis for its restoration.

By the Court. — Judgment affirmed.  