Citizens' Sav. Bank & Trust Co. v. Fitchburg Mut. Fire Ins. Co.

• Citation: 87 Vt. 23,86 A. 1056
• Court: Vermont Supreme Court
• Decision Date: 02 June 1913
• Parties: CITIZENS' SAVINGS BANK & TRUST CO. v. FITCHBURG MUT. FIRE INS. CO.

86 A. 1056

87 Vt. 23

CITIZENS' SAVINGS BANK & TRUST CO.

v. FITCHBURG MUT. FIRE INS. CO.

Supreme Court of Vermont. Caledonia.

June 2, 1913.

Powers and Watson, JJ., dissenting in part.

Exceptions from Caledonia County Court; E. L. Waterman, Judge.

Action by the Citizens' Savings Bank & Trust Company against the Fitchburg Mutual Fire Insurance Company. Judgment for plaintiff and defendant excepts. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Joseph Fairbanks and H. B. Howe, both of St. Johnsbury, and J. W. Redmond, of Newport, for plaintiff.

Dunnett & Slack, of St. Johnsbury, for defendant.

MUNSON, J. A previous trial of this case is reported in 86 Vt. 267, 84 Atl. 970. The trial under review proceeded upon an understanding that the only matters to be determined by the jury were the actual cash value of the property at the time of the fire and the amount of the loss, and that the findings of the jury would be taken by special verdicts. Under the provisions of the policy, it was for the plaintiff's interest to have the value of the property appear small and the amount of the loss large, while it was for the defendant's interest to have the value of the property appear large and the amount of the loss small. Nearly all the questions argued relate to matters of evidence.

It was held in the former opinion that the rental value of the building might be shown as tending to establish its actual cash value, and that the totals of the classified expenses used by the plaintiff in arriving at the net income of the building were properly received in evidence. The list to which this holding related contained a total of the cost of insurance. No claim was then made by the defendant which distinguished this from the other items of the list. It is now argued that the expense of insurance is not properly chargeable against the rents, and that it was error to receive a list which contained it. It is not necessary to inquire as to the soundness of the defendant's argument, for it is clear that the holding covering this item, made in the former decision, must remain the law of the case.

After showing the net rents received, the plaintiff was permitted to show by one of its officials that the rents were increased from time to time; that they endeavored to get, and in the opinion of the witness did get, all they could by way of rents; and that the sums received were a reasonable return for the use of the property. If the rental of the building was to be relied upon as an evidence of its value, it was proper to show that the rents received were what they ought to have been; and, it being for the interest of the plaintiff to have the value of the property appear small, this showing may have been needed to secure full credit for this feature of its evidence.

The opinion of a witness as to the value of the property was objected to because he was asked to, and did, take into consideration, in forming his opinion, a list of the rents which had been prepared and furnished by the plaintiff. The list had been sworn to as correct, and been put in evidence in connection with the testimony of the official who prepared it, and it was not error to permit the witness to take it into consideration in forming his opinion.

The plaintiff claimed a total loss, but had built upon some of the walls left standing, and had used some of the fixtures of its banking rooms. In explanation of the apparent inconsistency, the plaintiff offered evidence for the purpose of showing that the property named was in fact worthless, but was used to expedite the work of construction for the convenience of the plaintiff's business, and without other advantage to the plaintiff. In this view, evidence was received to show that the long counter in the banking room and the glass and metal screening, although so damaged as to be practically worthless, were repaired because it would take less time to repair them than to get new ones; and that the walls built upon were made use of, not because of any value they had, but because their business could be accommodated thereby more speedily. In the same line, evidence was received to show how the walls had been injured by the smoke of the pine wood, the great heat of the fire, and the water thrown into the building; to show the necessity of removing and replacing several thousand brick in the walls used, the expense attendant upon shoring up the walls above the portions to be removed, and the difficulty of putting furring on the damaged walls in preparation for the plastering and finishing; to show that interior walls were built, and the manner in which these were attached to the outer walls by ties, bolts, and truss rods, to afford them support; to show that the water used had weakened the foundation, and that this had caused the foundation and walls to settle, and the old walls to pull off from the new structure, and that the settling had caused cracks in the building and sags in the old floors, and that after these floors had been brought to a level by shimming there was a further settling. All this evidence came in under exception.

It was held in the former decision that the plaintiff was entitled to account for its making use of walls which it claimed were not worth using. It must be equally true that the plaintiff is not precluded from showing the worthlessness of the walls by the fact that it made use of them. It is argued, however, that the evidence regarding the settling of the new structure makes the defendant liable, not only for the injury to the foundation and walls of the building insured, but for the injury which resulted to the new structure from the plaintiff's election to build on the damaged foundation. It is apparent that this evidence was not received to extend the damage beyond a total loss of the insured property, but to sustain the claim of the plaintiff that there was a total loss as against the defendant's claim, based in part upon the plaintiff's conduct, that the remnants were worth $30,000. It is clear that the evidence regarding a subsequent settling was evidence tending to show an injury to the foundation, and the defendant could not require its exclusion on the ground that it was capable of being misapplied to its injury.

As bearing upon the expense of removing the debris in preparation for rebuilding, the plaintiff introduced under exception evidence showing that the first thing the workmen did was to look for and remove the dead bodies; that the plastering and lath and old floor boards had to be carried to the rear of the building and thrown from the windows, and that this involved looking to see that no one was beneath; that there were public sidewalks on three sides of the building close to it, and that coverings had to be built to protect the public and plaintiff's tenants who insisted on remaining in the basement; that it would have been better for the plaintiff to have had the building as it stood after the fire out of the way than to use it, and that it cost about $4,000 to clear away the old material that was not used. It is specially objected in argument that the witness' statement that the remnants were a damage instead of a benefit involved the very question of valuation which the jury was to determine, and that the plaintiff's introduction of evidence showing the expense it incurred in protecting its tenants was an indirect way of securing its rents at the expense of the defendant. As to the first objection, it appears from the defendant's brief that in other parts of his testimony the witness described the condition of the walls and what was necessarily done in clearing away the débris. With this in the case the witness could properly give his judgment as to values. The exact testimony upon winch the second objection is based is this: "The tenants of the basement insisted upon staying there, and the people, we had to protect them." There is nothing here to indicate that anything was done for the protection of the tenants that was not necessarily done for the protection of the general public.

The plaintiff's treasurer, when cross-examined by defendant's attorney, said that they had never offered the remnants for sale. In redirect examination, had on a later day, the witness was asked if he then recalled making such an offer, and if he did, to tell whom he offered it to and at what price. This was objected to as not proper redirect examination; and after some reference by plaintiff's counsel to the character of the cross-examination, the witness was permitted to answer under exception, that they had offered to sell the property to the insurance people for $5,000. In a discussion following the answer, the point that it was a self-serving declaration was first made, and there was then further reference by plaintiff's counsel to the questions put in cross-examination, after which a motion to strike out the answer was made and overruled, and an exception taken. On a recross-examination, it appeared that this offer was on condition that the insurance companies reconstruct the building. Defendant then moved again that the testimony regarding the offer be stricken out, and the motion was overruled and an exception taken. The defendant now claims that it was error to permit the witness to state on redirect the price for which he offered to sell the debris to the insurance people, and error to refuse to strike out the evidence after the nature of the offer was fully disclosed. Some members of the court would dispose of this matter upon the ground that the defendant has no valid exception, but a majority prefer to place the determination on a different ground. It is true, as argued by counsel, that the witness was asked nothing in cross-examination about price or parties. But it is not always necessary that counter inquiries be confined to the things specifically mentioned in the previous examination. The manifest purpose of the original...