McIntosh v. Home Mut. Ins. Ass'n of Iowa, No. 36175.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSTEVENS
Citation200 N.W. 694,198 Iowa 1038
PartiesMCINTOSH v. HOME MUT. INS. ASS'N OF IOWA.
Docket NumberNo. 36175.
Decision Date19 November 1924

198 Iowa 1038
200 N.W. 694

MCINTOSH
v.
HOME MUT. INS. ASS'N OF IOWA.

No. 36175.

Supreme Court of Iowa.

Nov. 19, 1924.


Appeal from District Court, Delaware County; George W. Wood, Judge.

Action to recover on a policy of fire insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

[200 N.W. 694]

Ray A. Emmert and Stipp, Perry, Bannister & Starzinger, all of Des Moines, and Yoran & Yoran, of Manchester, for appellant.

A. M. Cloud, of Manchester, and Trewin, Simmons & Trewin, of Cedar Rapids, for appellee.


STEVENS, J.

This is an action on a policy of fire insurance to recover the losses resulting from the partial destruction of the residence of appellee in Manchester, Iowa, and for damages to household goods. The building was restored substantially to its former condition at an alleged cost to appellee of $2,433.34. The jury in answer to special interrogatories found the damages to the building to have been $2,550 and to the household goods $300. The verdict of the jury was for the aggregate of these two sums.

[1] I. Evidence of competent witnesses was introduced over the objections of appellant to prove the value of the building immediately before and immediately after the fire and also of the cost of restoration. The by-laws of appellant limit its liability to what it would cost to repair or replace the damaged property with material of like kind and quality. The court instructed the jury that the measure of recovery, if any, would be the difference in the value of the residence immediately before and immediately after the fire, but in no event to exceed the cost of restoration, making proper allowance for deterioration.

It is urged by appellant that it was prejudicial error for the court to submit any other rule for determining the amount of appellee's recovery than the fair and reasonable cost of restoring the building to its former condition with material of like kind and quality. In this connection our attention is called to Limburg v. German Fire Insurance Co., 90 Iowa, 709, 57 N. W. 626, 23 L. R. A. 99, 48 Am. St. Rep. 468. The evidence in that case showed that the building could be repaired at an expense of from $200 to $250, and we held that this was the limit of plaintiff's recovery. As we have in our previous decisions pointed out, the by-laws do not attempt to prescribe or fix a rule of evidence, but only to limit the liability of the insurer as to amount. The exception preserved below was to paragraph 2 of the court's charge;...

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