Columbia Gas of Kentucky, Inc. v. Maynard

• Decision Date: 14 November 1975
• Citation: 532 S.W.2d 3
• Parties: COLUMBIA GAS OF KENTUCKY, INC., Appellant, v. Everett MAYNARD et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 3

532 S.W.2d 3

COLUMBIA GAS OF KENTUCKY, INC., Appellant, v. Everett MAYNARD et al., Appellees.

Court of Appeals of Kentucky.

Nov. 14, 1975.

Rehearing Denied Feb. 20, 1976.

J. K. Wells, Wells, Porter & Schmitt, Paintsville, E. D. Gerwig, Columbus, Ohio, for appellant.

R. Coleman Endicott, Lexington, for appellees.

PALMORE, Justice.

Columbia Gas of Kentucky, Inc., appeals from a judgment entered pursuant to a jury verdict awarding Everett Maynard and various members of his household a total recovery of $16,172.00 for the destruction by fire of his house and outbuildings, together with their contents. The questions before us on the appeal are confined to the matter of damages and sufficiency of evidence in that respect.

The house was built in 1956 and was destroyed in 1971. It consisted of two stories, with four rooms and a utility room downstairs and two rooms upstairs. Excluding porches, its outside dimensions were 28 26 . It had pine floors, an asbestos shingle exterior, and a tin roof. There was no plumbing and no central heating system. After the fire a new house was built at a cost of $17,000. During the interim of some 10 months the family lived in part of a grocery store owned and operated by Maynard. $1172 of the judgment represented this item of recovery. The remaining $15,000 was awarded for loss of the house, a wash house, furniture, clothing, and other personal property.

A most unusual aspect of the controversy is that Maynard neither owned the land on which the house was located nor had any rental or other kind of contract entitling him either to possess or to purchase it. Ordinarily, of course, a permanent structure becomes a part of the real estate, but in this instance the landowner disclaimed any ownership interest in the building, so they must be considered as moveable personal property.

Maynard and his only other valuation witness (the friendly landowner) expressed opinions as to the 'fair market value' or 'fair and reasonable market value' of the house at the time it was destroyed. The term 'market value' connotes, of course, sale value as distinct from intrinsic value or value to some particular person. On that basis, the market value of this particular building was the price it would have brought if sold by a willing seller to a willing buyer, separately from the land. However, neither witness gave any testimony that would qualify him to express an opinion as to the value of the buildings if sold separately from the land on which they were situated. Hence the appellant's motions to strike their testimony relating to the value of the buildings should have been granted. The evidence had no probative value and therefore was insufficient to support a verdict.

Actually, according to previous decisions of this court it appears that 'when a building has been destroyed by fire the measure of damages is not the market value of the building destroyed, because a building apart from the ground on which it stands cannot be said to have a market value, but is the fair and reasonable value of the building destroyed as it was when and where destroyed.' Prestonsburg Superior Oil Gas Co. v. Vance, 215 Ky. 77, 284 S.W. 405, 408, 47 A.L.R. 483 (1926). See also Kentucky & West Virginia Power Co. v. Kilburn, 304 Ky. 635, 201 S.W.2d 896, 900 (1947), and Louisville & Nashville R. Co. v. Howe, Ky., 243 S.W.2d 905, 908 (1951). We are not satisfied, and do not hold, that as against market value this is the proper criterion of recovery for the destruction of a building situated on real estate in which the owner of the building has no more interest than a tenancy at will, but even if it were, the valuation testimony produced in this case was not premised upon it and would not have supported an instruction on that basis.

Maynard himself gave the only evidence concerning the value of the various contents of the building. His experience in buying and selling similar property probably qualified him to express an opinion as to their market values (that being the criterion stated in the instructions), but he admitted that his estimates were based only on what the various items were worth to him, as follows:

'Q. 438 I noticed this morning when Mr. Endicott was asking you about these figures he asked you if this was what it was worth to you. I believe that's what these figures are, isn't it?

'A. Yeah.

'Q. 439 How much the stuff was worth to you?

'A. That's right.

'Q. 440 And that's the full basis of these figures?

'A. What it's worth to me.

'Q. 441 What it's worth to you, not what it's worth to the jury, not what it's worth to me, or anybody else, but just what it's worth to you?

'A. That's right. It might not be worth two cents to you.'

The measures of damages stated in the trial court's instructions to the jury were (a) 'reasonable market value of his home, and wash house and contents thereof' and (b) 'such reasonable amount, if any, you find was necessary to provide them sufficient housing facilities from November 8, 1971 to August 30, 1972,' neither award to exceed the amount demanded on that account in the complaint. Market value was defined as 'the price which the building and contents would have brought, if offered by one who desired to sell, and was not compelled to do so, and was bought by one who desired to purchase, but was not compelled to have it.'

By separate instruction the jury was advised as follows:

'Plaintiff, Everett Maynard, did not own the land his house and wash house set on (sic), and did not have a legal and forcibly (sic) right to keep them there, except at the will and sufference of the land owner, Edgar Castle, who could tell him to remove them on a thirty-day notice, if he so desired. In determining a fair market value of the house, you will take into consideration that the purchaser would have known that he could be compelled by the land owner to remove the house and wash house on a thirty-day notice, to some other location.'

Since the instructions relating to the building and...