Division of General Services v. Ulmer, 19276
Citation | 256 S.C. 523,183 S.E.2d 315 |
Decision Date | 24 August 1971 |
Docket Number | No. 19276,19276 |
Court | United States State Supreme Court of South Carolina |
Parties | DIVISION OF GENERAL SERVICES, Appellant, v. C. E. ULMER, Chairman et al., Respondent-Cross Appellant. |
Wesley M. Walker and Albert Q. Taylor, Jr., Leatherwood, Walker, Todd & Mann, Greenville, Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen., Everett N. Brandon, Columbia, for appellant.
T. Reeve Sams, of Levin & Sams, Beaufort, for respondent-cross appellant.
This appeal is from the decree of the lower court in a declaratory judgment action involving the proper measure of damages to be applied in the collection of benefits growing out of a fire insurance policy. Both parties have appealed.
The issues were tried before Circuit Judge William L. Rhodes, Jr. on testimony and upon stipulations. Relevant portions of the stipulations are as follows:
'It is further agreed that the value of the building known as Robert Smalls Junior High School immediately preceding the fire loss which occurred was two hundred and thirty three thousand eight hundred dollars; that the value of the portion of the building which remained standing or the value of the salvage was eighty five thousand dollars immediately after the fire; that the actual cost of repairs to the fire damage in order to restore the building to its original condition was or is, one hundred and forty eight thousand eight hundred dollars.
'It is agreed that there was received a guaranteed estimate for repairing and rebuilding the Robert Smalls Junior High School for a cost not to exceed one hundred and thirty five thousand three hundred and seven dollars * * *' (The cost of repair of $148,800 is reached by adding engineering fees to this amount).
In addition to the stipulations there was submitted to the judge oral testimony and exhibits relating to the nature and extent of the damage. The judge also considered whether interest should be allowed. Testimony submitted relating to cost of repair and relating to the stipulated sound value of the building immediately prior to the loss was excluded as being irrelevant under the view the judge took of the law and the facts.
The positions of the plaintiff and of the defendant as taken from the agreed statement of facts are as follows:
'The plaintiff maintained that the loss was partial and that even if the valued policy statute applied, under the statute as amended, the maximum amount of insurance to be paid would equal the amount of the actual loss.
'The defendant agrees that the amount to be paid is the actual loss but that the actual loss is not limited to the costs of repairs and further contends that whether the loss was total or partial, the method of determination remains the same under the statute and the legislature by its amendment merely confirmed the existing law.'
The lower court found that the loss was partial and that the salvage value of the building was $85,000. The judge concluded that the valued policy statute, Section 37--154 of the Code, applied. The amount of the loss was established at $275,000 by deducting the determined salvage value of $85,000 from the value stated in the policy of $360,000. Since the amount of loss exceeded the amount of insurance, recovery was reduced to the full amount of insurance, or $250,000. Interest was not allowed.
Plaintiff has appealed, alleging error on the part of the judge, (1) in applying the valued policy statute, Section 37--154; (2) in computing the amount to be recovered for a partial loss; (3) in ruling that Act No. 232 of the Acts of 1947 of the legislature did not change the applicable law of the valued policy statute; and (4) in excluding certain testimony.
Defendant has appealed, alleging error on the part of the judge in (1) ruling the loss to be partial rather than total, and (2) in denying interest to the defendant.
An initial determination of whether the loss was partial or total will expedite our treatment of the other issues. Defendant contends that the lower court erred in holding that the loss was partial. We think the exception is without merit. From the order of the lower court we quote the following:
'However, the testimony given by Mr. McElveen, who was the Defendants' witness, and by Mr. McKellar, who was the Plaintiff's witness, that it would have been possible from a practical standpoint as well as economically feasible to reconstruct the building utilizing the remains thereof as the basis for such reconstruction, and that this could have been accomplished even though it would be necessary to have the reconstructed building comply with the Southern Standard Building Code, causes me to reach the conclusion that the loss here is a partial loss.'
We have reviewed the entire evidence and conclude that the finding of the lower court is well supported by the evidence. In fact, portions of the damaged building were actually used in reconstruction.
Plaintiff alleges error on the part of the lower court in applying to the facts in this case the valued policy statute, now codified as Section 37--154. We will treat this question along with the question alleging error in computation of the amount to be recovered, and the question alleging error in declaring the effect of the 1947 amendment.
A valued policy statute was first adopted as a part of the law in this state in 1896. This statute required the parties to a fire insurance contract to agree upon the value of the property to be insured and required that such value be stated in the policy. The purpose of this legislation was to eliminate controversy after the loss occurred. Prior to 1947 the statute read as follows:
'No fire insurance company or individuals writing fire insurance policies, doing business in the State, shall issue policies...
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