Borden v. General Ins. Co. of America

• Decision Date: 05 June 1953
• Docket Number: No. 33265,33265
• Citation: 157 Neb. 98,59 N.W.2d 141
• Parties: BORDEN et al. v. GENERAL INS. CO. OF AMERICA.
• Court: Nebraska Supreme Court

Page 141

59 N.W.2d 141

157 Neb. 98

BORDEN et al. v. GENERAL INS. CO. OF AMERICA.

No. 33265.

Supreme Court of Nebraska.

June 5, 1953.

Syllabus by the Court.

1. The owner of personal property is qualified to express an opinion of the value thereof solely because of his status as owner of it.

2. A witness who is shown to be acquainted with property and its reasonable market value is qualified to testify to his opinion of such value.

3. The qualification of a witness to give testimony of the value of personal property is committed to the sound discretion of the trial court and its ruling thereon will only be disturbed when clearly erroneous.

4. The phrase not exceeding a specified amount in a policy of insurance denotes that uncertainty of amount which is the chief characteristic distinguishing an open from a valued policy.

5. A provision of an insurance policy that the insured is indemnified to the extent of the actual cash value of the property at the time of the loss not exceeding an amount therein stated constitutes merely a limitation upon the amount of the recovery and is not a substantive measure of damages which the insured may invoke.

6. A policy of insurance indemnifying the insured against loss because of damages to or destruction of property designated therein not exceeding a specified amount is no evidence of the value of the property or the extent of the loss.

7. An admission by an agent to be admissible in evidence against his principal must have been a statement of fact within his own knowledge and not the expression of an opinion.

8. The local agent of an insurance company may not bind his principal by his statements to the owner of property as to the value thereof made during negotiations for the writing of insurance resulting in the issuance of an unvalued policy thereon to the owner. Such statements of the agent are inadmissible as original evidence of value in a suit on the policy to recover a loss.

9. The proof in a trial of a jury case must be confined to legal evidence tending to prove or disprove an issue made by the pleadings and the admission of improper evidence is prejudicial error if it may have influenced the verdict.

10. If it does not appear from the record that evidence wrongfully admitted in the trial of a jury case did not affect the result of the trial unfavorably to the party against whom it was admitted its reception must be considered prejudicial error.

11. The trial court must correctly instruct the jury the proper method of determining the amount that the plaintiff may recover.

12. A litigant may not have an allowance of an attorney fee by the court unless it is authorized by statute or a uniform course of procedure.

13. The court has no authority to award an attorney fee in favor of the plaintiff upon rendition of judgment in his favor in a suit on a fire insurance policy concerning only personal property.

Maupin & Dent, North Platte, for appellant.

Beatty, Clarke, Murphy & Morgan, North Platte, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an action on a contract of fire insurance brought by appellees against appellant for recovery of a loss resulting by the destruction by fire of the property insured.

The claims of appellees are that appellant, for a premium paid, issued and delivered to appellees a policy of fire insurance and thereby indemnified them against damage by fire of their stock of groceries and meats and the fixtures, furniture, and equipment, located and used in their retail grocery store and meat market in North Platte to the extent of the actual cash value of the property at the time of the loss not exceeding $20,000; that during the term of the policy the property was destroyed by fire; and that the actual cash value of it was in excess of the maximum indemnity provided by the policy.

The appellant admitted the issuance and delivery of the policy by it to appellees for a consideration; that it protected them against loss as defined therein to the extent of the actual cash value of the property described in the policy at the time of the loss to an amount not exceeding $20,000; that the property insured was the stock, fixtures, furniture, and equipment above described; that it suffered some loss and damage by fire while the insurance was effective; and appellant denied the other claims of appellees.

The jury made special findings of the actual cash value of the stock of merchandise and of the fixtures, furniture, and equipment of appellees on the date of the loss. It deducted from the value of the latter the salvage as the trial court required it to do and it returned a general verdict for appellees consistent with the special findings. The motion of appellant for a new trial was denied and judgment was rendered for the appellees.

The contending parties as shown by the record are Buell S. Borden, appellee, the owner of the property destroyed by the fire, and the appellant. Claribel L. Borden, named as one of the appellees, will not be again mentioned herein. The merchandise consisting of groceries and meats referred to in the policy of insurance will be identified as the stock, and the fixtures, furniture, and equipment will be described as fixtures.

A part of the answer of appellant alleges that the business of appellee on the date of the fire and for a considerable time before it was unprofitable, in a failing condition, and was subject to sure liquidation and forced sale, and at the time of the fire that it was not possible to sell it as a going concern; that the store was conducted in a rented building and the tenancy was only from month to month; that a decree of foreclosure had been rendered in the district court for Lincoln County against appellee 6 days before the fire in an amount greater than $2,700 which was a first lien on the fixtures of appellee used in the operation of his business, and sale thereof had been ordered to satisfy the decree; that the fixtures were designed and constructed for use only in the building where they were at the time the insurance contract was made effective and where they were at the time they were destroyed, and they were not available for use in any other building or place of business; that the stock of groceries and meats had been reduced, unsalable merchandise had accumulated until the store could not supply its normal trade, and the stock and fixtures were not salable as a unit; and that appellee was estopped by virtue of his sworn evidence in prior litigation to contend or attempt to support any theory that the actual cash value of the property destroyed by the fire was other than what it could at that time have been sold for at a forced or liquidation sale. These matters were by the court, on motion of appellee, stricken from the answer. This is the basis of an assignment of error by the appellant.

The appellant denied the allegations of appellee concerning the value of property at the time it was destroyed. The issue joined by the pleadings was the actual cash value of the property within the limitations of the policy. The appellant was entitled to show by competent evidence every available fact and circumstance that affected or tended to show the value of the property and this the law accorded it without further pleading than the denial it had made of the value claimed by appellee. There were many improper matters in the part of the answer that was eliminated. These invited evidence and contention on many matters foreign and immaterial to the issue of the case. Appellee had and was conducting a retail store at the time of the fire. The appellant was bound by contract to indemnify him to the amount of the actual cash value of the property destroyed as it existed at the time of the fire within the maximum amount provided by the contract. The issue was, what was that value. The poverty or wealth of appellee did not affect it. The ruling of the court in this respect did not prejudice appellant.

It is said by appellant that there is no competent proof of the merchandise destroyed or the value thereof. The only testimony offered and received as to the stock was that of Buell S. Borden, appellee. There was an absence of evidence of the character, quantity, quality, or other descriptive detail of the merchandise destroyed. The witness, the owner of the insured property and the operator of the store, was asked if he had an opinion of the actual cash value of the property on the date of the fire, and he said he had. Upon further inquiry he stated his opinion. The objections of appellant to the witness being permitted to place his estimate of value in evidence were that proper foundation therefore had not been laid; that it was an improper method of attempting to value the property destroyed as a basis of recovery on the policy of insurance; that the inquiry called for the statement of a conclusion; and that the evidence was incompetent and irrelevant.

The witness identified, and there was received in evidence, a detailed statement of the items of fixtures, but there was no foundation for the opinion of the witness concerning the value of the stock except that he was the owner of it at the time of the fire; that he had owned and operated the store for more than 3 years; and that he had prior thereto been employed and worked in the grocery business for about 20 years. Appellant insists that before the owner of property may testify to his estimate of its value there must be evidence of the character, nature, and description of it which the jury may consider in weighing the testimony of the owner on the issue of value. The appellant has incorrectly appraised the situation.

It has long been established in this state that the owner of personal property is qualified to express his opinion of the value of the property solely by his status as owner. In the early case of Western Home Ins. Co. v....