99 S.W.2d 742 | Ky. Ct. App. | 1936
Reversing.
This appeal is from a $966 judgment recovered upon a policy of fire insurance.
The construction of this brick house was peculiar, in this, that while the long walls on the north and south of it were of brick and so was the wall at the west end, *731 the east wall was not of brick. When the east end was built, studding were simply set up against the west wall of the log house, and these studding were lathed and plastered on the inside. Thus the house so constructed had a brick wall on the south, the west, and the north, but only a wooden wall on the east. The insurance policy involved covered the brick building only.
The next ground is addressed to errors in the evidence. This was what we defined in Thuringia Ins. Co. v. Malott,
"In cases of partial loss of the property insured, the liability of the company shall not exceed the actual loss of the party insured."
The measure of recovery for such a loss is to be determined by the reasonable cost of restoring or repairing any damage or injury caused solely by the fire to as good condition as it was just before the fire. Citizens' Fire Ins. Co. v. Lockridge, etc.,
The above rule is the proper measure of Dr. Crume's recovery, and not what he expended for repairs or the difference in the value of the house before and after the fire. For example, he admits he put a new roof on the L part of the house, and he testifies that was not damaged by the fire. Certain parts of the house may have been so injured by fire, water, etc., that it would have to be renewed to make it as good as it was before, and Dr. Crume may have concluded to let that go as it was, without repair, but that does not mean he cannot recover for it. In other words, Dr. Crume should recover the reasonable cost of the necessary labor and material to make this house as good as it was just before the fire. The cost of the repairs he made may not be the same as that. The doctor may have done somethings the fire had not made necessary to be done and left undone some things that should have been done.
Thus as we understand it there were really five sections of this east wall as it appeared to view after this log building fell. Starting in at the south wall, there was twenty-two inches of brick, then five feet of lath and plaster wall with exposed studding, then the old chimney, then nine feet of lath and plaster wall with exposed studding, then came again twenty-two inches of brick.
Dr. Crume's testimony is in great confusion. At one place he says:
"There were two sections of the end of the building and one of the sections had never been completed, had never been bricked up like the other one had and I paid for fixing that part of it myself."
At another place he says:
"I built from the chimney over to the corner of the house. Here is the chimney about the middle of the building and then on each side of the chimney there was a space like this and over here on this side it had never been bricked up, that is what I was talking about. From the chimney over here it had been and it was lathed and plastered."
We cannot understand the doctor's testimony, but we are sure there was a section of lath and plaster wall on each side of this chimney just as we have stated above; but if we are mistaken and either the five-foot section or the nine-foot section had been built of brick and it fell or had to be taken down because of the fire, then the doctor is entitled to be paid the cost of erecting that much new brick wall. Dr. Crume should be neither enriched nor impoverished. The insurance company *734 should restore to him what he had before the fire, nothing less and nothing more.
"The jury will find for the plaintiff, W.E. Crume, such a sum as you may believe from the evidence represents the reasonable cost of restoring or repairing any damage or injury to this house, caused solely by the fire, so as to put it in substantially as good condition as it was just before the fire, your finding not to be less than $_____ nor to exceed $_____."
The court will fill these blanks with such figures as the evidence may require. We find no fault in the other instructions.
Judgment reversed for a new trial.
The whole court sitting.
Perry, J., dissents. *735