Mercer v. ST. PAUL FIRE & MARINE INS. COMPANY

318 So. 2d 111
CourtLouisiana Court of Appeal
DecidedSeptember 3, 1975
Docket12654
StatusPublished
Cited by8 cases

This text of 318 So. 2d 111 (Mercer v. ST. PAUL FIRE & MARINE INS. COMPANY) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercer v. ST. PAUL FIRE & MARINE INS. COMPANY, 318 So. 2d 111 (La. Ct. App. 1975).

Opinion

318 So.2d 111 (1975)

Dewey MERCER, d/b/a Mercer Home Care Service, Plaintiff-Appellant,
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellee.

No. 12654.

Court of Appeal of Louisiana, Second Circuit.

September 3, 1975.

*112 Cook, Clark, Egan, Yancey & King, by Edwin L. Blewer, Jr., Shreveport, for plaintiff-appellant.

Mayer, Smith & Roberts, by Paul R. Mayer, Shreveport, for defendant-appellee.

Before BOLIN, HALL and DENNIS, JJ.

BOLIN, Judge.

Plaintiff, Dewey Mercer, sued St. Paul Fire and Marine Insurance Company, seeking to recover the face amount of a $50,000 fire insurance policy. The insurance company calculated its liability under the policy to be $7,052.47, inclusive of interest and court costs, and deposited this amount into the registry of court. Without assigning written reasons the district judge rendered judgment in favor of plaintiff in the amount tendered by the insurance company. Plaintiff appeals seeking an increase in the amount of the judgment. We modify the lower court's judgment by increasing the award to $18,775.68.

The insurance policy in question insured the contents of a warehouse against loss by fire. The contents of the warehouse consisted of two different lots of merchandise purchased by Mercer as salvage following two different fires. One lot comprised of aluminum siding and related materials was purchased by Mercer after a warehouse fire in Houston, Texas. The second lot consisted of office furniture and equipment purchased after a fire at a M. L. Bath Company warehouse located in Shreveport. Mercer placed both lots of goods in a warehouse which he had rented in Shreveport. This warehouse and its contents were totally destroyed by fire of unknown origin on January 1, 1969.

This case involves two problems. One relates to the determination of the amount of merchandise in the Mercer warehouse when it was destroyed by fire. The second problem is deciding the "actual cash value" of the goods destroyed, which includes the thorny question of the actual cash value of goods purchased as salvage after a fire.

Mercer is the owner of a small home-improvement business engaged in putting aluminum siding on houses. Plaintiff's practice prior to July of 1967 was to buy siding only as needed for a particular job rather than to keep a running inventory of siding. In July of 1967, plaintiff was in Houston purchasing material for a job in Nederland, Texas, and while there he learned of a fire which had burned an aluminum siding manufacturer's outlet warehouse. After inspecting the fire-damaged goods, Mercer *113 decided to purchase a large amount of usable siding. Being unable to raise the cash for the purchase, he contacted Kelly Womack, owner of an aluminum siding supply store in Shreveport, to determine if Womack would provide the financing. Womack agreed and the two men entered into a joint venture to purchase the siding. Womack was to furnish the money for the venture and Mercer was to be the working partner.

The two men purchased the entire contents of the Houston warehouse for $2600. Mercer salvaged 1204 squares of usable aluminum siding and a large amount of related materials, such as gutters, nails, touch-up paint, etc., all of which he sent to Shreveport. He sold the rest of the material as scrap to several Houston junk dealers for $6000.

Under the working agreement between Womack and Mercer, Womack would first recoup his initial outlay of funds used to purchase the salvage, clean the warehouse in Houston, transfer the salvage to Shreveport, and rent warehouse space in Shreveport. After these expenses were satisfied the two men agreed to share equally in the proceeds from the venture. As Mercer withdrew the siding from the warehouse to be used on a particular job, Womack would bill him at the regular wholesale price for the siding. Mercer would then remit only half of the bill in payment since the two men were co-owners of the siding.

This arrangement lasted until October 31, 1967, when Womack sold his interest in the Houston salvage to Mercer for $3500. At that time approximately 1100 squares of siding remained from the original 1204 squares. Womack testified he sold his interest at this low price for a variety of reasons: (1) some of Womack's wholesale customers felt there was a conflict of interest since Womack was, in effect, in direct competition with them; (2) the siding that was purchased in Houston was colored siding and Womack testified he did not carry any colored siding in his stock because the demand for white aluminum siding was nine times greater than the demand for colored siding; (3) Womack had more than doubled his original investment in less than four months.

The second lot of goods, consisting of office furniture and equipment, was purchased by Mercer as salvage from a fire at M. L. Bath's warehouse in Shreveport on November 5, 1968. He paid $2500 for the entire contents of this warehouse and moved as much of the least damaged material as he could into his rented warehouse. The remainder of the goods was moved to another Bath warehouse or was left at the Bath warehouse which had burned. Mercer's rented warehouse now contained the aluminum siding salvaged from the Houston fire and the office furniture and equipment salvaged from the Bath fire. On January 1, 1969 the building and its contents were totally destroyed by fire. At that time approximately one-third of the warehouse was occupied by the siding and the remaining two-thirds by the furniture.

We now turn to the problem of determining the amount of goods that was actually in Mercer's rented warehouse at the time of the fire. Plaintiff did not keep an inventory of the material in his warehouse. The inventories he prepared in connection with this suit were all done from memory and from inspection of the remains after the fire. As to the Houston salvage, the only dispute is as to the number of squares of siding in the warehouse at the time of the fire, which Mercer calculated at 810 squares. He offered no proof of this other than his own estimate. An insurance adjuster figured there were approximately 585 squares of siding in the warehouse at the time of the fire. This figure was based on entries in a small notebook apparently belonging to Mercer, showing monthly withdrawals of siding from the warehouse from September of 1967 through May of 1968. The adjuster averaged the withdrawals over that nine-month *114 period and projected withdrawals at the average rate up until January 1, 1969, which resulted in a figure of 585 squares in the warehouse at the time of the fire. The trial judge apparently felt, as we do, that plaintiff failed to prove by a preponderance of evidence the warehouse contained 810 squares of siding; rather, the evidence supports a finding it contained approximately 585 squares at the time of the fire.

Mercer arrived at an inventory of office supplies and equipment by taking Bath's partial inventory of its warehouse and marking off those items that were still at the site of the Bath fire or were at the other Bath warehouse. The insurance adjuster followed much the same procedure and decided that the Mercer warehouse contained approximately 70% of the furniture and equipment plaintiff had purchased after the Bath fire.

The next question concerns the value to be placed on the goods that were destroyed by the fire. The insurance policy covered "warehouse contents, consisting principally of aluminum siding and office furniture. . .

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Bluebook (online)
318 So. 2d 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercer-v-st-paul-fire-marine-ins-company-lactapp-1975.