Geddes & Smith, Inc. v. Saint Paul Mercury Indemnity Co.

407 P.2d 868, 63 Cal. 2d 602, 47 Cal. Rptr. 564, 1965 Cal. LEXIS 217
CourtCalifornia Supreme Court
DecidedNovember 24, 1965
DocketSac. No. 7668
StatusPublished
Cited by60 cases

This text of 407 P.2d 868 (Geddes & Smith, Inc. v. Saint Paul Mercury Indemnity Co.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geddes & Smith, Inc. v. Saint Paul Mercury Indemnity Co., 407 P.2d 868, 63 Cal. 2d 602, 47 Cal. Rptr. 564, 1965 Cal. LEXIS 217 (Cal. 1965).

Opinion

MOSK, J.

Defendant appeals from a judgment for plaintiff in an action to recover on an insurance policy issued by defendant to plaintiff’s vendor, California Aluminum Products, Inc. For the second time during this prolific litigation the dispute has reached this court. In our first decision, judgment for defendant was reversed and the ease was remanded for further proceedings. (Geddes & Smith, Inc. v. Saint Paul [604]*604Mercury Indemnity Co. (1959) 51 Cal.2d 558 [334 P.2d 881].) We have concluded that the judgment rendered upon remand should be affirmed with one modification.

A detailed exposition of the facts may be found in our prior opinion. Briefly stated, plaintiff, a contractor, purchased 760 doors from California Aluminum Products, Inc. (hereinafter referred to as Aluminum Products) and installed them in 76 houses which it was building. After the houses had been completed, serious defects appeared in all the doors. Plaintiff spent an entire year correcting these defects and, as a result, was unable to carry on any other business. In April 1953 plaintiff recovered a judgment for $100,000 against Aluminum Products; and in the following November this action was brought against the defendant insurance company for the amount of that judgment.

Under the terms of the policy defendant agreed to insure Aluminum Products for all sums which it became obligated to pay because of injury to or destruction of property, including the loss of use thereof, caused by accident.1 Damage to goods or products manufactured, sold, or distributed by Aluminum Products was excluded from coverage,2 and plaintiff concedes that the original cost of the doors themselves is excluded by this provision. At the first trial, defendant successfully contended that all other damages awarded in the suit against Aluminum Products also came within this exclusion, but in our prior decision we rejected this interpretation and found that defendant was liable for the expenses incurred in repairing the houses. However, the policy was interpreted as insuring only against damage to physical or tangible property, and the case was remanded so that the portion of the claimed damages attributable to plaintiff’s loss of profits and goodwill could be determined. We approved of the rule pronounced in Hauenstein v. Saint Paul-Mercury Indemnity Co. (1954) 242 Minn. 354, 358 [65 N.W.2d 122], that the damages should be measured by the diminution in the value of the building or [605]*605the cost of removing the defective product and restoring the building to its former condition, whichever is less.

On remand, the trial court found that a total of $65,641.75 of the $100,000 damage award was to reimburse plaintiff for its loss of profits and goodwill and for the cost of storing the defective doors; judgment for plaintiff was entered for the balance of $34,358.25. The only issue now before us is whether the trial court correctly applied the measure of damages prescribed in our previous decision.

Defendant notes that damages were to be measured by the lesser of two alternatives and contends that the trial court thus erred in failing to make any finding concerning one of these alternatives, i.e., the diminution in the value of the houses. There was no evidence upon which such a finding could have been based, and in the circumstances of the case the failure of the parties to present such evidence is understandable. At the time the houses were completed no defects in the doors had appeared; each of the original doors failed separately over a period of six months. To accurately measure the diminution in the value of the houses, it would appear to have been necessary to appraise each house both before and after the failure of the doors, and such an extensive undertaking clearly would have been impractical and unjustifiably burdensome.

Defendant offered to introduce evidence that none of the houses had been sold for less than the requested purchase price and that there had been no rescission or default in payment by any of the purchasers. The apparent failure of the trial court to rule on the admissibility of this evidence is asserted to be reversible error. However, the fact that the price of the houses remained constant is irrelevant since the doors did not fail until after the houses had been bought. The subsequent failure of the purchasers to rescind is most plausibly explained by the fact that plaintiff, in an attempt to mitigate the damages, replaced the doors as they became defective. The policy of the courts has been to promote mitigation of damages (see Jordan v. Talbot (1961) 55 Cal.2d 597, 610 [12 Cal.Rptr. 488, 361 P.2d 20]; Mabb v. Stewart (1905) 147 Cal. 413, 417 [81 P. 1073] ; Rest., Contracts, § 336), and this policy would be subverted if the party performing the repairs were required in all cases to present evidence as to the hypothetical value of the property had the defects remained uncorrected.

In Pfingsten v. Westenhaver (1952) 39 Cal.2d 12 [244 P.2d [606]*606395], the defendant contended that the plaintiff was required to prove that the costs of repair of a truck were less than its diminished value after an accident. The court rejected this argument and said, “When there is a complete lack of evidence tending to show a diminution in value of injured personalty, the court may not assume that the diminution in value was of lesser amount than the proved reasonable cost of necessary repairs. ” (Id. at p. 24; accord, Smith v. Hill (1965) 237 Cal.App.2d 374, 388 [47 Cal.Rptr. 49]; Konda v. Frumpkin (1928) 90 Cal.App. 384, 386 [265 P. 955]; Rhodes v. Firestone Tire & Rubber Co. (1921) 51 Cal.App. 569, 574 [197 P. 392].) A similar rule has been applied in measuring damage to real property. (Natural Soda Products Co. v. City of Los Angeles (1943) 23 Cal.2d 193, 200-201 [143 P.2d 12]; Linforth v. San Francisco Gas & Electric Co. (1909) 156 Cal. 58, 62 [103 P. 320, 19 Ann.Cas. 1230]; Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 367 [28 Cal.Rptr. 357].) Thus the failure of the plaintiff in this case to present evidence concerning the diminished value of the houses will not defeat its recovery.

In regard to the second alternative measure of damages, defendant concedes that the cost of removing the defective doors is recoverable but maintains that the damages awarded should not have included the cost of installing new doors in their place. Defendant interprets the clause in the insurance policy excluding damage to products sold by the insured as excluding all costs of replacement and contends that it is only liable for restoring the houses to their condition prior to the installation of any doors.

In our first decision we held that the policy excluded liability for damage to products sold by the insured but did insure against damage to other property. It was found that the injury to the houses had not been confined to the doors themselves but that other damage had resulted for which defendant is liable.

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Bluebook (online)
407 P.2d 868, 63 Cal. 2d 602, 47 Cal. Rptr. 564, 1965 Cal. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geddes-smith-inc-v-saint-paul-mercury-indemnity-co-cal-1965.