Robert E. McKee General Con., Inc. v. Insurance Co.
| Decision Date | 28 July 1959 |
| Docket Number | No. 6068.,6068. |
| Parties | ROBERT E. McKEE GENERAL CONTRACTOR, INC., a corporation, Appellant, v. INSURANCE CO. OF NORTH AMERICA, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
T. B. Keleher, Albuquerque, N. M. (W. A. Keleher, Albuquerque, N. M., was with him on the brief), for appellant.
Richard G. Cooper, Albuquerque, N. M. (Iden & Johnson, Albuquerque, N. M., were with him on the brief), for appellee.
Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.
This action was initiated by appellee in the District Court for the District of New Mexico to assert a claim for damages against appellant founded upon contractual subrogation rights. The appellee insurance company had paid to its insured, one David Cooper, a retail merchant, $16,479.43 upon a claim for damage occasioned to merchandise through the collapse of the building occupied by the insured. Liability for the loss suffered by Cooper was admitted by appellant, a contractor engaged in demolishing an adjoining building. The single question presented to the trial court was the amount of damage suffered by Cooper. That court determined the loss to be the sum of $5,723.32 and entered judgment for the insurance company accordingly. The single question presented on appeal is whether or not the trial court's determination of amount of loss can find support in the evidence.
When the store building leased by Cooper became unsafe due to the excavation made by appellant, Albuquerque city officials declared the premises dangerous and sealed them off from public entrance for a period of six to eight weeks. Dirt, dust, plaster and water covered the merchandise, largely inexpensive items of clothing. Such events caused Cooper to consider the stock unsaleable and it then became "either the insurance company's (appellee) or Robert E. McKee's (appellant)." After the merchandise could be safely reached, Cooper and a representative of an underwriters salvage company inventoried the stock upon an adjusted cost basis. This basis, factually premised upon Cooper's accounting procedures, gave consideration to actual cost adjusted in view of both appreciated and depreciated market value. Cooper testified that a total of the inventory would be less than cost due to these adjustments and less than the current market value, apparently signifying the wholesale market to which he, as a retailer, would look for replacements. See Comment f. to § 911 of The Restatement of Torts. The inventory value was determined to be $16,479.43 which was the amount paid to Cooper by appellee.
The insurance company then solicited six bids upon the...
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