Gardull v. Royal Insurance Co. Ltd.

2 A.2d 504, 133 Pa. Super. 257, 1938 Pa. Super. LEXIS 307

• Court: Superior Court of Pennsylvania
• Decided: October 14, 1938
• Docket: Appeal, 197
• Status: Published

Opinion

Opinion by

Rhodes, J.,

Defendant issued to plaintiff a policy of fire insurance covering a frame building which she owned in Bristol, Pa. The policy in the amount of f1,000 insured plaintiff for the term of three years, from the 10th day of August, 1934, to the 10th day of August, 1937, against all direct loss and damage by fire to the property therein described. On February 15, 1937, plain tiff’s building was totally destroyed by fire, and she instituted an action of assumpsit to recover on tbe policy. At tbe trial in tbe court below, at the conclusion of plaintiff’s case, tbe trial judge granted defendant’s motion for compulsory nonsuit. Tbe court subsequently refused to take it off, and plaintiff has appealed.

Defendant did not deny that appellant suffered a loss; this controversy arose over tbe amount of tbe loss. It is defendant’s position that tbe nonsuit was properly entered because of appellant’s failure to establish by competent evidence tbe value of tbe building when tbe loss occurred. Under tbe terms of tbe policy defendant was liable “to tbe éxtent of tbe actual cash value (ascertained with proper deductions for depreciation) of tbe property at tbe time of loss or damage, but not exceeding tbe amount which it would cost to repair or replace tbe same with material of like kind and quality within a reasonable time after such loss or damage.”

Angelo DiRenzo, a contractor and builder, one of appellant’s witnesses, testified that he bad made an estimate of what it would cost to replace tbe building with like material, and that tbe estimated cost was $1,-724.74. Tbe witness was then asked to state tbe actual cash value of tbe building immediately before tbe fire, taking into consideration tbe cost of construction of a new building and tbe depreciation in value during tbe existence of tbe old building. Defendant’s objection to tbe question was sustained by tbe trial judge. No objection was made to tbe witness’ qualifications which bad been previously developed; nor did defendant make any request, or attempt, to interrogate him as to bis qualifications to make an estimate, or tbe method which be proposed to use to determine tbe depreciation, or tbe kind and quality of tbe materials entering into tbe estimate. Appellant’s second assignment of error is accordingly sustained.

This same witness subsequently testified that it would cost $2,500 to replace tbe destroyed building with tbe same material (white pine) as that of which it was originally constructed; that his estimate of $1,724.74 was based upon the use of North Carolina pine which is similar, but much cheaper in price than white pine. The witness explained the difference in cost of the two types of lumber, and stated that the grade of white pine originally used was unobtainable. On defendant’s motion the trial judge struck from the record the testimony as to reproduction cost based on North Carolina pine. This was the cost of a substantial duplication of the building. We think the jury would have been entitled to this information, and that the evidence was relevant, and therefore admissible. See Bobereski v. Insurance Company of the State of Pennsylvania, 105 Pa. Superior Ct. 585, 590, 161 A. 412. Appellant’s seventh assignment of error, which complains of this ruling by the trial judge, is sustained.

No objection was made by defendant to appellant’s evidence as to what it would cost to replace the building with new white pine lumber. Appellant’s witness also testified that in his opinion the actual value of the building when it was destroyed by fire on February 15, 1937, was between $1,200 and $1,400. Counsel for defendant argues that such value was not determined by applying a proper percentage of depreciation to the cost of new material, but was predicated upon rentals which might possibly be received for the building. This is a possible, but not an inevitable, conclusion. The witness gave his opinion that the building was worth $2,400, predicated upon the rentals received, and that the basis of his calculation was on a 10 per cent return. In considering the evidence introduced by appellant she must receive the benefit of all inferences fairly deducible therefrom, and we must resolve all doubts in her favor. Donze et al. v. Devlin, 329 Pa. 1, 195 A. 882. On cross-examination appellant’s witness was led to say that if the building was not rented it would not be worth anything; and when he was asked to explain what he meant by that statement he was denied the opportunity by the trial judge. Appellant’s sixth assignment of error, which complains of this ruling, is likewise sustained. The rental value of the property at the time of the fire had a bearing on the actual value, and was admissible. 26 C. J. p. 536, § 750; Cumberland Valley Mutual Protection Co. v. Schell, 29 Pa. 31. The witness should have been permitted to correct or explain his statement. We do not believe, after an examination of his testimony, that he meant to say that the building would have had no actual cash value when destroyed, if unrented at the time. As to “actual cash value” see Patriotic Order Sons of America Hall Ass’n v. Hartford Fire Ins. Co., 305 Pa. 107, 157 A. 259; Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555, 151 A. 285; J. Purdy Cope Hotels Co. et al. v. Fidelity-Phenix Fire Ins. Co., 126 Pa. Superior Ct. 260, 264, 191 A. 636. Assuming, as defendant argues, that the witness fixed the actual cash value of the building at the time of fire at $1,200 or $1,400 on a rental basis, the witness should have been allowed to state in what manner he arrived at that amount.

It is true, as said by the learned court below in its opinion refusing to take off the compulsory nonsuit, that the testimony of the witness DiRenzo is somewhat confused, but appellant is not entirely chargeable with this result. We think the witness’ testimony was susceptible of reconciliation, and that it was for the jury to determine the construction to be placed upon it. Parker v. Matheson Motor Car Co., 241 Pa. 461, 88 A. 653. Had the witness been permitted to testify more fully, it is probable that some of the conflicts would have been obviated. The issue involved in this case is simple, and the applicable rules of law are clearly established. When the case is retried, adherence to the recognized methods of proof should present to the jury the question for determination devoid of any confusion.

Judgment of the court below is reversed, with a venire.