*1 98 Scavone, 425 149 Me. A.2d In Davis v.
Revision 45.10. § considering testamentary power sale the court a naked according the heirs fee in the devisees wrote "the vests subject remaining will, provisions of the be- terms and vesting upon power." Such is divested execution conditional. appraisement $50 an of the 560 acres at
Neither thereof as a unit for determines acre nor sale appear equally at therein. If it shall the time the devisees share is tracts are of different values of distribution acre claimed, proceeds with due here will distribute regard for such difference.
Accordingly, appealed is with from reversed confirming county court order the sale directions reinstate by the made executor. Judges
All concur. CO., GRUBBS, Respondent Appellant v. FOREMOST INSURANCE (141 777) 1966) (File April 27, Opinion filed No. 10265. *2 Wernke, Gregory, Herman and respondent. Johnson, Gregory, G. F. appellant. for defendant and BIEGELMEIER,Judge.
Plaintiff, owner aof mobile home trailer which was dam- aged hail, brought against this action the insurer for his loss. liability, disputed Defendant admitted pol- but the amount. The icy provided: loss, partial
"In the event of liability Company's shall not exceed a. The amount of: the lowest
(1) difference between the actual cash value immediately loss mobile home before the immediately
and its actual cash value after loss; or preceding actual cash *3 damaged part parts
the loss of the or or des- troyed; or
(3) damage; repairing cost of or the damaged replacing part parts." The cost of the $1,200 plaintiff. a of returned damages The instruction of the on the measure of was: plaintiff, will on the "Your verdict be for the and damages, you money question must fix the amount of of reasonably fairly compensate which and him for will damage during the done to his trailer house the storm May of showing of has been the cost
"Evidence introduced repair the house and the value be- to trailer determining repair. of fore and after the In the amount damage you may plaintiff award the sustained the money lesser of two sums of to be arrived at as amount follows: you sum to be the
"The first is the determine making repair expense necessary to of the reasonable property. the fair sum is difference between the
"The second the immediately property the before market value of unrepaired prop- fair market storm and the value erty immediately after the storm." appeal a and the motion for new trial this defendant states case, law of that this instruction became but evi- $1,200. dence insufficient to sustain the of De- that fendant contends the most could recover was the which, expense repairing property of reasonable accord- evidence was testify The record shows a witness for did in his opinion property; $944.65 it would cost the rea- the trailer sonable before the hail storm was somewhere $2,300 $2,400 between and and that after the hail storm its value $800 $900. and was between He also testified that after the re- pairs $944.65 had been made to trailer value would $1,700; depend have been that its value would on somebody repaired peo- whether or knew it as "some might ple feel not be" as valuable as trailer which had not repaired. been "repair" "replace" policy
The words used in property insurance mean the restoration the insured to sub stantially prior same condition which it was damage. holding involving That has been the in cases *4 damage Co., Casualty to automobiles. Smith v. American Fire & 448; Tex.Civ.App., County 242 S.W.2d American Standard Mut. Barbee, Tex.Civ.App., 122, v. Ins. Co. 262 S.W.2d and 6 Blash field, Cyclopedia Practice, of Law Automobile and 3791. See § Damages generally also and 45 Insurance C.J.S. § C.J.S. § Co., 27, Indemnity
In Stucker v. Travelers 77 S.D. 84 N.W.2d 566, counsel, by recovery policy not cited one limit of in the was repair replace" the "cost to or part the automobile or thereof. The jury recovery trial court instructed the if the measure of was the accident, salvage, difference in value before and after the less alternative, damage "by or as an if the was not a total loss and repairs placed substantially could be in the same condition it recovery was in before the accident then the measure of for necessarily expended would such be sum as would be placing substantially in said automobile in the same condition ** prior court to accident
it was
the
requires
repair
approved
the
alternative
the instruction
substantially
place
property
as it
to
in
the same condition
the
damage
it also
the
of
was
the
on which
wrote
"burden
before
proof
to
car
on the
show the
could be
was
insurers
**
to
condition
restored
its former
recovery
limited
the cost of
Plaintiff's
was
to
substantially
property
replacement
to
or
if that restored the
prior
jury
it did
do so the
under
and
its
condition.
If
the law
damage
under
differ
the
instruction could find the
the
court's
jury
nor
ence in fair
alternative. Neither
the court
value
opinions
expert
New
bound
the
witnesses. Robinson v.
30,
Co.,
jury
York Life Ins.
69 S.D.
Without evidence range $944.65 to those of defendant which varied $531.95 from could find value of $2,400 $3,000; trailer storm was that after before hail $1,650 $1,700, repairs were it would be worth made not, instructed, ''fairly repairs com- mentioned would as the damage". jury question, pensate him for That was Rowan Co., Indemnity supra. and Stucker v. both Becker Travelers expert despite so latter an witness concluded his case $1,627.50 testimony repairs valued other car $3,100. equal prior $825 at would Such de- *5 opinions jury in are for to consider reconcile. viations repaired opinions that trail- We have overlooked witnesses' before, good appeared shape it also er in a as as would be type metal was not available re- same exercising plaintiff placement company it notified option of the loss. to make a cash settlement support The record evidence is therefore sufficient jury's reliance on the view of the the verdict without viewing evidence, yet trailer. This was not enabled weigh satisfactorily to more it and determine the issues fact. Also, it a "is factor to be borne in mind in our assessment of the sufficiency Beatty Depue, S.D. evidence". 187, 1 A.L.R.3d 531. reviewing
The trial court denied a new trial and a approved. court is reluctant disturb verdict the trial court has Co., Indemnity supra. Stucker v. Travelers Affirmed.
RENTTO, P.J., HOMEYER, JJ„ and ROBERTS and concur. HANSON, J„ dissents.
HANSON, (dissenting). Judge with the accordance contract of insurance and the in- structions of court the in this case could not exceed the lesser of: repair, The reasonable cost of
(2) The difference between the fair market value of the
mobile home before the loss and its value immedi- ately after the loss. prove
The burden was on the amount of his dam- ages by competent certainty. evidence with reasonable Accord- ing testimony to the own repair- witness the cost of the trailer any This amount was less than evidence based on before and after valuations. In his brief required concedes would have been to return having repair except verdict based on the cost viewed mobile home for themselves the first hand view evidence, they arriving became could consider at their verdict. *6 this is not considered be evidence in
A view jurisdiction justify based does not thereon. supported by is not otherwise the record The verdict opinion my case this should be modified and in own witnesses said would cost to the amount down repair the mobile home. al., Respondents WEEG et COMPANY, Appellants INSURANCE IOWA MUTUAL (141 913) 1966) (File Opinion April 28, filed No.