Grubbs v. Foremost Ins. Co., Grand Rapids
| Decision Date | 27 April 1966 |
| Docket Number | No. 10265,10265 |
| Citation | 82 S.D. 98,141 N.W.2d 777 |
| Parties | George N. GRUBBS, Plaintiff and Respondent, v. FOREMOST INSURANCE CO., GRAND RAPIDS, Michigan, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Herman & Wernke, Gregory, for plaintiff and respondent.
G. F. Johnson, Gregory, for defendant and appellant.
Plaintiff, owner of a mobile home trailer which was damaged by hail, brought this action against the insurer for his loss. Defendant admitted liability, but disputed the amount. The policy provided:
'In the event of a Partial loss,
a. The amount of the Company's liability shall not exceed the lowest of:
(1) The difference between the actual cash value of the mobile home immediately before the loss and its actual cash value immediately after the loss; or
(2) The actual cash value immediately preceding the loss of the part or parts damaged or destroyed; or
(3) The cost of repairing the damage; or
(4) The cost of replacing the damaged part or parts.'
The jury returned a verdict of $1,200 for plaintiff.
The instruction of the court on the measure of damages was:
'Your verdict will be for the plaintiff, and on the question of damages, you must fix the amount of money which will reasonably and fairly compensate him for the damage done to his trailer house during the storm of May 15, 1962.
'The first is the sum which you determine to be the reasonable expense of making the necessary repair to the property.
'The second sum is the difference between the fair market value of the property immediately before the storm and the fair market value of the unrepaired property immediately after the storm.'
In the motion for a new trial and this appeal defendant states this instruction became the law of the case, but that the evidence was insufficient to sustain the judgment of $1,200. Defendant contends that the most plaintiff could recover was the reasonable expense of repairing the property which, according to plaintiff's evidence was $944.65.
The record shows a witness for plaintiff did testify in his opinion it would cost $944.65 to repair the property; that the reasonable value of the trailer before the hail storm was somewhere between $2,300 and $2,400 and that after the hail storm its value was between $800 and $900. He also testified that after the repairs of $944.65 had been made to the trailer its value would have only been $1,650 or $1,700; that its value would depend on whether or not somebody knew it was repaired as 'some people feel it might not be' as valuable as a trailer which had not been damaged and repaired.
The words 'repair' and 'replace' used in a policy of insurance mean the restoration of the insured property to substantially the same condition in which it was immediately prior to the damage. That has been the holding in cases involving damage to automobiles. Smith v. American Fire & Casualty Co., Tex.Civ.App., 242 S.W.2d 448; American Standard County Mut. Ins. Co. v. Barbee, Tex.Civ.App., 262 S.W.2d 122, and 6 Blashfield, Cyclopedia of Automobile Law and Practice, § 3791. See also generally 25 C.J.S. Damages § 83 and 45 C.J.S. Insurance § 915.
In Stucker v. Travelers Indemnity Co., 77 S.D. 27, 84 N.W.2d 566, not cited by counsel, one limit of recovery in the policy was the 'cost to repair or replace' the automobile or part thereof. The trial court instructed the jury if the measure of recovery was the difference in value before and after the accident, less salvage, or as an alternative, if the damage was not a total loss and 'by repairs could be placed in substantially the same condition it was in before the accident then the measure of recovery for plaintiff would be such sum as would necessarily be expended in placing said automobile in substantially the same condition it was immediately prior to the accident * * *'. The court approved the instruction which requires the repair alternative to place the property in substantially the same condition as it was before the damage on which it also wrote the 'burden of proof was on the insurers to show the damaged car could be restored to its former condition * * *'.
Plaintiff's recovery was limited to the cost of repair or replacement only if that restored the property to substantially its prior condition. If it did not do so the jury under the law and the court's instruction could find the damage under the difference in fair value alternative. Neither the court nor jury was bound by the opinions of the expert...
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...is entitled to compensation for such deficiency." 109 S.E.2d at 577. The South Dakota Supreme Court in Grubbs v. Foremost Insurance Co., 82 S.D. 98, 99, 141 N.W.2d 777, 778 (1966), held that the terms "repair" or "replacement" used in an insurance policy mean the restoration of the property......
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