Scism v. Howe Ins. Co.

• Decision Date: 10 August 1920
• Docket Number: No. 2651.,2651.
• Citation: 224 S.W. 48
• Parties: SCISM et al. v. HOWE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

224 S.W. 48

SCISM et al. v. HOWE INS. CO. OF NEW YORK.

No. 2651.

Springfield Court of Appeals. Missouri.

August 10, 1920.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Thomas G. Seism and others against the Home Insurance Company of New York. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Fyke, Snider & Hume, of Kansas City, for appellant.

Wammack & Welborn, of Bloomfield, for respondents.

STURGIS, P. J.

The plaintiff's barn was injured by lightning, and this suit is on a policy of insurance covering such loss. The defendant has at all times admitted its liability and offered to settle, but the parties could not agree on the amount of the damage. The only issue made and tried was the amount of the damages. The record shows that the witnesses for the respective parties arrived at the amount of damages from different points of view. Plaintiff's witnesses testified as to "what it would cost to put the barn back into the condition it was before it was struck by lightning." This, of course, means that, where a large timber was damaged, the cost of putting in a new one was figured. Defendant's witness estimated the damage on a basis that, if such timber could with no repair or with only slight repair be used for a number of years or indefinitely, then the cost of such repair would be the measure of damages. These different points of view caused the witnesses to differ widely in their estimates of the damage. Neither method, as we shall see, was the correct method of measuring damages in suits of this character. The evidence of each party as evidence was proper from either point of view, as thereby the jury was put in possession of the facts, and could better arrive at a correct conclusion under the correct rule for measuring damages.

The only assignment of error is that the court erred in the instruction given on the measure of damages, and that in consequence thereof the damages given by the verdict, $500, is excessive. That instruction is as follows:

"The court instructs the jury that the verdict of the jury in this case should be for the plaintiff; and the measure of the plaintiff's recovery should be such sum as you find from the evidence would have been the amount of money necessary to repair the damage done to plaintiff's barn by lightning, at the time the damage was done, and to put the barn in the condition it was before the lightning struck it, not to exceed the sum of 8800, the amount sued for."

We must hold that this instruction is erroneous. The cost necessary to repair the damage by putting the barn in the condition it was in before being damaged by fire or lightning is not the measure of damages prescribed by section 7022, R. S. 1909. Under that section, where the insured demands the payment in money of the damage in case of

"a partial destruction or damage to property covered by insurance, it shall be the duty of the party writing the policy to pay the assured a sum of money equal to the damage done to the property."

Such amount is arrived at by ascertaining the difference between the value before and after the partial destruction or damage to the property. The jury should be instructed to find the amount of the loss sustained, by ascertaining from the evidence the fair cash value of the insured property immediately before being struck by lightning and the like value immediately afterward, and return a verdict for the difference....