Rochester Am. Ins. Co. v. Short
| Decision Date | 10 January 1953 |
| Docket Number | No. 34894,34894 |
| Citation | 207 Okla. 669,252 P.2d 490 |
| Parties | ROCHESTER AMERICAN INS. CO. v. SHORT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. A contract of fire insurance is one of indemnity where the insurer undertakes to make the insured whole as against such loss of the insured property as he may suffer on account of fire in an amount not exceeding that stipulated in the policy.
2. As a general rule, the actual cash value of a building at the time of destruction by fire in determined by many factors in order to effectuate complete and proper indemnity. The cost of reproduction, the age of the building, the condition in which it has been maintained, all facts and circumstances which would logically enable the trier of such facts to determine a correct estimate of the loss are proper yardsticks to be used in order to arrive at the value of the insured property as it stood on the day of the fire.
3. 'Actual cash value' of building totally destroyed by fire is a matter of fact to be determined by a consideration of all relevant factors and circumstances existing at the time of the loss, and in the absence of affirmative proof of misconduct or lack of proper consideration, the jury's verdict, as to such value, based on competent evidence, will not be disturbed.
Rittenhouse, Hanson, Evans & Turner, Oklahoma City, for plaintiff in error.
Hope & Hope, Maysville, David A. Kline and H. M. Redwine, Oklahoma City, for defendant in error.
The parties will be referred to herein as they appeared in the lower court. Plaintiff brought this action on a standard form insurance policy covering a dwelling in the city of Pauls Valley, alleging that on January 8, 1949 the property had been completely destroyed by fire, that proper notice had been given to the insurer which carried insurance in the total sum of $3,000. In addition to this insurance, additional insurance in the amount of $2,000 was carried with another company. Therefore, defendant's liability under the policy involved in this case was limited to 3/5 of the amount of the loss, not in excess of $3,000. The Home Owners Loan Corporation was, by amendment, made a party defendant but it filed a disclaimer and thereafter Geraldine Stufflebaum intervened claiming to be the owner of a promissory note, secured by a mortgage on the property. In the final decree, her claim was given a first and prior lien on the recovery by plaintiff as against the defendant, Rochester American Insurance Company, for the total amount of her claim. Defendant admitted issuance of the policy and there was introduced evidence showing it had been notified of the loss although it had claimed the notice given was not in proper form.
The only contention of the defendant is that the verdict of the jury for the plaintiff in the amount of $3,000 is contrary to and in disregard of the trial court's instruction, is not supported by sufficient evidence, is contrary to law and is erroneously excessive; and that the motion for a new trial should therefore have been granted. Defendant claims that the actual value of plaintiff's property at the time of the loss was less than $5,000, based on a formula it contends is exclusive for figuring such a loss. It does admit liability in an amount of $1,108.71 or $1,801.68.
If there was sufficient evidence before the jury to sustain its verdict, then this resolves all matters presented in this appeal and the judgment must be affirmed, Mid-Continent Petroleum Corp. v. Fisher, 183 Okl. 638, 84 P.2d 22. Defendant offered no evidence as to the value of the property, so we must look solely to the evidence presented by plaintiff and his witnesses.
Witness Donihoo testified that he had dealt in real estate in Pauls Valley since 1944 and was familiar with property values, and that it was his opinion the dwelling of plaintiff, exclusive of the lot, was worth $5,250 at the time of its destruction; that the rates of depreciation insisted upon by the defendant were only one factor used in arriving at the value of the property and that the condition of the house and the neighborhood in which it was located were other factors considered.
Witness Moore, who had worked on the house, testified that the house was painted on the outside and that the inside was in 'pretty nice shape.'
Witness Ward, a carpenter for 40 years, testified that it would cost $9,239.37 to rebuild the house and a written estimate for materials and labor prepared by Hudson-Houston Lumber Co. for witness Ward is in the total of $9,253.39. All evidence introduced showed that the property was worth in excess of the total amount of insurance carried.
Defendant's brief is all on the theory that the plaintiff is only entitled to recover the 'actual cash value' of the destroyed premises and that the 'actual cash value' can only be determined by taking the estimate of plaintiff's witness, Ward, and then applying a formula for figuring depreciation. It gives no consideration to the present-day conditions where the dollar value of the property has been increased by the general depreciation of the value of such dollars and gives no consideration to testimony of the witnesses who apparently took these conditions into consideration.
Defendant insists Instruction No. 5 of the court is correct, but complains that in spite of the admonitions of the court and its instruction, these were not sufficient to secure a verdict in conformity to the evidence and such instruction. Instruction No. 5 reads as follows:
'You are instructed that a policy of insurance is a contract of indemnity, that is, that the insured is only entitled to recover the actual cash value of the property destroyed in the event of a total loss.
'You are instructed that the terms and provisions of the policy in suit are fixed by law in this State and no other form of policy may be written.
'And, in this connection, you are instructed that your verdict must be for the plaintiff against the defendant in such an amount as you think will fairly compensate him for the loss sustained by him, after taking the above and foregoing facts into consideration, but in no event shall your verdict be in the excess of $3,000.00.'
It will be noted in this instruction that the court stated the 'actual cash value' of a building is the cost of replacing said building with material of like...
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