¶1It may be conceded that the owner of a building has an insurable interest in the foundation upon which it rests; but if as. in this case *470the description in the policy of insurance includes it as a part of the building, it cannot be so considered in settling losses. The purpose of Sec. 3691 Rev. Stat., was to prevent the confusion- and uncertainty arising by treating the foundation as a part of the building and to give full effect to See. 3643 Rev. Stat. in case of total loss of the building.
¶2The illustration suggested by counsel for plaintiff in error of a policy of insurance upon dwelling house and furniture therein contained is not in point, as the furniture is not included as a part of the building, nor is there any statutory regulation of such a case except See. 3643 Rev. Stat., which would still require the insurer’s agent to fix the insurable value of the building at the time the policy .is applied for.
¶3The construction of this section contended for would permit the insurer to defeat its operation in all cases by simply using -the form of policy here sued on.
¶4It is practically undisputed that the loss of the buildings was total, and the error of the court in not qualifying the definition of “total loss” as requested by counsel at the conclusion of the general charge was not prejudicial. So, likewise, if the foundation be considered not a part of the buildings, the exclusion and admission of certain evidence set forth in the brief were without prejudice. It follows also that there was no error in refusing to submit to the jury interrogatories Nos. 1, 3 and 4.
¶5The charge of the court that the jury need not consider whether the property was vacant at the time the policy was applied for and issued was proper under Sec. 3643 Rev. Stat., as well as the undisputed evidence that the agent of the company had actual knowledge of such vacancy. The demurrer to the amendment to the second defense alleging a proportionate liability for the cash value of the dwelling house at the time of the fire was properly sustained, although a motion to strike out would have been more appropriate. Queen Insurance Co. v. Leslie, 47 Ohio St. 409 [24 N. E. Rep. 1072; 9 L. R. A. 45].
¶6The special instructions refused by the court were requested upon the theory that the foundation was specially insured, and thereby a disagreement as to the amount of loss, and necessity for an appraisement arose; but if the buildings, exclusive of foundation, were a total loss, the disagreement was unimportant and a necessity for appraisement did not exist. Ohage v. Insurance Co. 82 Minn. 426 [85 N. W. Rep. 212].
¶7We find no prejudicial error and the judgment will be affirmed.