Voges v. Mechanics Ins. Company

Decision Date03 April 1930
Docket Number27042
Citation230 N.W. 105,119 Neb. 553
CourtNebraska Supreme Court

APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Reversed.


Syllabus by the Court.

Policy of insurance in suit construed and the following provisions viz., " This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality," held,

(a) To be a valid stipulation and determinative of the rights and liabilities of the insurer and insured and applicable to losses not within the scope of the Nebraska valued policy act;

(b) That, when applicable, " the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused" ; and

(c) That the provision, " the loss or damage * * * shall in no event exceed what it would cost the insured to repair or replace the same with material of like kind and quality," constitutes merely a limitation upon the amount of the recovery, and is not a substantive measure of damages which the insured can invoke.

As applied to the facts in the present case, the provisions of this policy contemplate that the " actual cash value" of the building as it stood on the ground prior to the fire shall be compared with the " actual cash value" of the same building at the conclusion of the fire, and that the difference shall be taken as the measure of damages, subject, however, to the limitations expressed in the terms of the policy.

Appeal from District Court, Lancaster County; Broady, Judge.

Action by Omer W. Voges against the Mechanics' Insurance Company of Philadelphia and another. From the judgment, defendant named appeals.

Reversed and remanded.

C. C. Flansburg, for appellant.

Andrew P. Moran, R. H. Hagelin and Fields, Ricketts & Ricketts, contra.

HEARD before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY and DAY, JJ., and MESSMORE, District Judge.



This is an action on a fire insurance policy to recover damages for partial loss occasioned by fire, in the building insured, on the 7th day of November, 1927. There was a trial to a jury and verdict returned in favor of appellees for the sum of $ 5,432.66. Motion for new trial on behalf of the insurance company was overruled and judgment for this amount entered. The insurance company appeals.

The controlling question presented by the record is as to the correctness of the measure of damages as defined by the instructions and applied to the evidence then before the trial court. In fact, the substantial dispute between the parties is even more restricted. It may be said to be limited to the question of damages to the rear or south wall of the building insured. The appellee sought to establish the damages to this portion of the building, as elsewhere, by proof of the work to be done and material needed to repair the building, and his evidence appears to be limited to these topics. Assuming this evidence of appellee to be true, it establishes only the cost of replacement of the damaged structure which is reflected in the verdict returned as the damages suffered and recoverable under the policy. In pursuance of this theory the district court instructed the jury:

"If you find from the evidence that the walls of the building are cracked or otherwise damaged by fire or water, or both, to such an extent that they would need be torn down and rebuilt, or repairs made to the walls, or any part thereof, which such damage and the cost of repairing said walls would be damages for which the plaintiff would be entitled to recover;" and also, "That the defendant, the insurance company, must accept the building in the condition in which it was at the time the insurance policy was written and cannot be heard to complain that the building may not have been a solid structure or that there may have been some defects in the walls prior to the date of insurance, but such defects can only be taken into consideration by you for the purpose of determining that, if there were such defects if the fire and water would have caused more damage than if the walls had been of solid structure, and, if so, that defendant would be liable therefor."

In this connection it appears that this building at the time of the fire occasioning the damage incurred had been constructed for 55 years. The brick used were soft sand brick, and the mortar, lime mortar. The rear wall was cracked and had been defective for more than 30 years prior to the date of the fire, and the evidence is to the effect that "the building had not been kept in repair." The effect of the litigation thus far is to require the insurance company to replace the wall which was defective and damaged prior to the fire by a wall substantially perfect in construction and material irrespective of the relative value of each. Thus, in truth and in fact, the trial court establishes as a sole substantive measure of damages invokable as such by the insured that replacement, under the facts in this case, was the measure of recovery.

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