(After stating the foregoing facts.) The first special ground of the amended motion for a new trial assigns error on the following charge: “Gentlemen, there are two main questions for you to decide in this case and determine, one of which has been stated, and that is whether or not, if this house *263 was burned, if it was destroyed by sparks caused by or emitted from the shaving pit of the defendants. If you find from the evidence in the case that though the house was burned that the burning did not originate from sparks from the shaving pit of the defendants, then you would stop there in your investigation and render a verdict in favor of the defendants.” It is contended that using the words, “if this house was burned,” caused the jury to understand that the defendants were denying that the house burned, thereby causing the jury to believe that, if the defendants would deny such an obvious fact, then none of their denials should be considered. The expression complained of is not susceptible to the construction placed thereon by the movants; but, even if it could be said to have remotely suggested to the jury any unreasonable position of the defendants, such an impression could not rightly be imputed to this jury in view of the court’s other statement, “it being admitted in this case that the house was entirely consumed.” '
The second special ground contends that the court erred in charging the jury as follows: “If, however, you should determine from the evidence in the case that the fire did originate from that source, then you would go further in the case and determine whether or not the defendants were negligent in any of the ways set out in the plaintiff’s petition. And if you find that the defendants were negligent then you would return a verdict in favor of the plaintiff for such amount as you may find from the evidence she would be entitled to recover. If you find that the defendant was not negligent, then and in that event you would return a verdict in favor of the defendants. I charge you, gentlemen, that it is entirely a question for you to determine as to whether or not this particular house was set on fire by sparks emitted from the source claimed by the plaintiff in the case. That is entirely a question for you to determine from all of the evidence, facts and circumstances of the case.” It is argued that the charge specifically instructed the jury to return a verdict against the defendants if the defendants were negligent— (a) irrespective of whether said negligence was the proximate cause of the plaintiff’s damages; (b) irrespective of whether said negligence was equaled or exceeded by negligence of the plaintiff; and (c) irrespective of whether the plaintiff had exer
*264
cised. ordinary care and diligence for the preservation of her own property, (d) It is further contended that the concluding part of the charge objected to stated that it was a question for the jury to determine whether or not the house was set on fire by sparks emitted from the source claimed by the plaintiff—thereby causing the jury to believe that, if the fire was caused by sparks from the defendants’ shavings pit, the defendants would be liable irrespective of any negligence on the part of the defendants, (e) It is further argued that the language used entirely overlooked the defenses filed by the defendants. All of these objections are obviously wholly without merit. “When error is assigned upon the failure of the court to charge a required principle of law at a particular place in the charge, or in connection with a specified part thereof, the whole charge must be looked to in order to determine whether or not the alleged omitted part is error; and construing the charge as a whole, if the required part alleged to bé omitted at a particular place is elsewhere contained in it, the charge is without error on this ground.”
Harper
v.
Hall,
76
Ga. App.
441 (3) (
The third special ground assigns error on the following charge: “I charge you that one making use of a fire for such purposes as stated in plaintiff’s petition must use ordinary care to prevent damage to the property of another from that fire or the sparks therefrom. Fire being a dangerous agency, the party lawfully using the same in his business must use ordinary care to prevent it spreading and damaging the property of another. If you believe from the evidence that the fire originated from sparks emitted from defendants’ shaving pit, then, in determining whether or not the defendant used ordinary care to prevent its damaging plaintiff’s property, you may consider the location of defendants’ shaving pit as to its nearness to plaintiff’s property, its proximity, the method and precautions used by defendants to prevent the escape of sparks from its shaving pit, and all
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the evidence introduced bearing on that question. It being entirely a question for you to determine from the evidence.” It is contended that it was error to charge that fire is a dangerous agency, and that the following statement was error, “You may consider the location of defendants’ shaving pit as to its nearness to plaintiff’s property.” The charge is without error. Fire is a dangerous agency
(Yeager
v.
Cooley,
45
Ga. App.
452, 454,
The fourth special ground contends that the statement, “the plaintiff would be entitled to recover the market value of that property at the time it was destroyed,” is error, since the replacement value and not the market value is the proper measure of damages. It is true that, where the damage is solely to the building and not to the land, the measure of damages is the cost of restoring the building to the condition it was in when the damage occurred.
Harrison
v.
Kiser,
79
Ga.
588, 589 (8) (
The fifth special ground assigns error on the refusal of the court to allow the plaintiff on cross-examination to answer the following question, “Did you have your tenant house insured?” It is contended that the evidence was relevant to show what value the plaintiff had previously placed on her property. The court did not err in refusing to allow counsel to go into the question of insurance. No question of insurance is involved, and the evidence is irrelevant and immaterial. Some time may have passed since the policy was applied for, and the value of the house at the time of the accident may have differed greatly from the value at the time the policy was issued. Further, it is not uncommon for a property owner to insure the property for less than its full value; and if the jury believed that the plaintiff might have been partially or totally paid for her loss by an insurance company, it would have been prejudicial to her case. The testimony was properly excluded.
The evidence supported the verdict, which was approved by the trial judge; and the court did not err in overruling the motion for a new trial.
The defendant in error asks this court to assess 10% damages, under Code § 6-1801, upon the ground that the case was brought to this court for delay only. It cannot be said conclusively that the case-was brought to this court for the reason assigned by the defendant in error, and the motion is denied.
Judgment affirmed.