Ins. Co., 94 Mass. 381; Trade Ins. Co. v. Barracliff, 45 N. J. L. 543; Imperial Ins. Co. v. Murray, 73 Pa. St. 13; Hope Oil-Mill Compress Co. v. Phoenix Ins. Co., 74 Miss. 320, 21 So. Rep. 132, 26 Ins. L. J. 995; Keefer v. Phoenix Ins. Co., 26 App. R. 277, Osler, J., revg. 29 Ont. 394; Home Ins. Co. v. Gibson, 72 Miss. 58, 17 So. Rep. 13, 24 Ins. L. J. 458; Miotke v. Milwaukee Mechanics' Ins. Co., 113 Mich. 166, 71 N. W. Rep. 463, 26 Ins. L. J. 910; Fox v. Capital Ins. Co., 93 Iowa, 7, 61 N. W. Rep. 211, 24 Ins. L. J. 206; Ulmer v. Phoenix Ins. Co., 61 S. C. 459, 39 S. E. Rep. 712.

RULE 35.

When Interest is Limited.

When a party insured has only a life interest in building insured and insures for his sole benefit the proper measure of damage is the value of such interest, and not the actual value of the building itself;' and so when the interest insured is limited,2 or when policy is in terms on "use and occupancy" the loss is not measured by value of the building.3 But where company with knowledge that insured is life tenant issues policy on full value of the fee, insured may recover full value, and holds excess over value of his life interest in trust for the remainderman. The interest of a vendee under a conditional contract of sale of personal property is limited to amount of installments paid, there being no liability for payments after destruction of the property;5 where liable for loss by fire his interest extends to whole value of the property.

1. Beekman v. Fulton County Ins. Co., 66 App. Div. 72, 73 N. Y. Supp. 110. And see Sampson v. Grogan, 21 R. I. 174, 42 Atl. Rep. 712; Bennett v. Featherstone,

Tenn.

S. W. Rep. 589; Schaefer v. Anchor Ins. Co., Iowa, 100 N. W. Rep. 857.

,

71

2. Monroe v. Southern Mutual Ins. Co., 63 Ga. 669. And see Protection Ins. Co. v. Hall, 54 Ky. 411; Hartford Ins. Co. v. Haas, 87 Ky. 531; Van Natta v. Mutual Security Ins. Co., 2 Sandf. 490; Shotwell v. Jefferson Ins. Co., 5 Bosw. 247; Niblo v. North American Ins. Co., 1 Sandf. 551; Davis v. Phoenix Ins. Co., 111 Cal. 409, 43 Pac. Rep. 1115; Doyle v. American Ins. Co., 181 Mass. 139, 63 N. E. Rep. 394; Steinmeyer v. Steinmeyer, S. C. 42 S. E. Rep. 184.

3. Michael . Prussian National Ins. Co., 171 N. Y. 25, 63

N. E. Rep. 810, affg. 64 App. Div. 182, 71 N. Y. Supp. 918. And see Chatfield v. Ætna Ins. Co., 71 App. Div. 164, 75 N. Y. Supp. 620.

4. Welsh v. London Assur. Co., 151 Pa. St. 607, 25 Atl. Rep. 142, 22 Ins. L. J. 94. And see Andes Ins. Co. v. Fish, 71 Ill. 620; Sampson v. Grogan, supra; Convis v. Citizens' Ins. Co., Mich. 86 N. W. Rep. 994. And see Grant v. Buchanan, Tex. Civ. App. 81 S. W. Rep. 820; "Parties to the Insurance Contract."

5. Tabbut v. American Ins. Co., 185 Mass. 419, 70 N. E. Rep. 410.

6. Ryan v. Agricultural Ins. Co.,

849.

Mass. 73 N. E. Rep.

RULE 36.

Limitation of Cost of Repairing or Replacing as Applicable to Buildings Effect of Local Statutes.

The limitation in the standard policy that the liability of the company "shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality " does not refer to cases where the company elects to rebuild, but fixes the measure of liability in all cases, and is not affected by a local statute in force when the standard policy was prescribed, governing the construction, alteration, or removal of buildings.

McCready v. Hartford Ins. Co., 61 App. Div. 583, 70 N. Y. Supp. 778. See Rules 39, 46, and "Exemptions, Exceptions, and Limitations," Rule 16. And see Hewins v. London Assur. Co., 184 Mass. 177, 68 N. E. Rep. 62, where distinction is pointed out under the Massachusetts standard form.

RULE 37.

Cash Value as Applied to a Building.

Actual cash value not exceeding what it would cost to replace means, in case of a building, its gross value or cost of replacing less the value of the portion saved; the latter value to be estimated on the basis of the use of the saved portion, at the same place, and for the same purpose as originally used.

Burkett v. Georgia Home Ins. Co., 105 Tenn. 548, 58 S. W. Rep. 848.

RULE 38.

Assured not Limited to Relative Value of Building for Purpose of Removal.

The insured is entitled to recover the real or actual value of a building destroyed according to the terms of the policy and is not limited to its relative value for purpose of a removal to which he had agreed previous to the fire.

Washington Mills Mfg. Co. v. Commercial Ins. Co., 13 Fed. Rep. 646; Washington Mills Mfg. Co. v. Weymouth Ins. Co., 135 Mass. 503.

RULE 39.

Partial Loss to Building - Effect of Building Laws.

In ascertaining the loss resulting from the partial burning of a building, the true result is to be reached by taking the cost of reconstruction according to the conditions existing and lawfully imposed at the time fire occurs. If a change in the building laws requires walls of an increased thickness in the rebuilding, the increased cost or expense must be paid by the insurance company, up to the extent of the amount designated in the policy.

Pennsylvania Co. v. Philadelphia Contributorship, 201 Pa. St. 497, 51 Atl. Rep. 351; Hewins v. London Assur. Co., 184 Mass. 177, 68 N. E. Rep. 62. But compare Rule 36.

RULE 40.

Measure of Damage When Building Partially Destroyed. Where the loss to insured building is not total but partial, the measure of damage is the difference between the value of the house whole, and damaged,

within the amount of the policy, unless the actual cost of repair is established by the company at a less sum.

German Ins. Co. v. Everett, 18 Tex. Civ. App. 514, 46 S. W. Rep. 95; Commercial Ins. Co. v. Allen, 80 Ala. 571; Commonwealth Ins. Co. v. Sennett, 37 Pa. St. 205.

RULE 41.

Opinions of Witness.

A witness who has never seen buildings destroyed, if competent as an expert on questions of value, may give his opinion as to the value in answer to a hypothetical question or statement of what has been proved as to quality, condition, situation of the property, etc.; but it is not reversible error to have permitted the witness to give his opinion on a description by another witness, where the value was shown by other witnesses, and no evidence to the contrary was introduced;1 a witness familiar with building in question, if otherwise competent, may give his opinion. But testimony of experts as to whether a certain quantity of goods could have been burned without destroying the floor is not admissible.3

1. Chicago & Alton R. R. Co. v. Gleny, 175 Ill. 238, 51 N. E. Rep. 896, affg. 70 Ill. App. 510. And see Machen v. Lamar Ins. Co. (N. Y.), 11 Ins. L. J. 619.

2. Home Ins. Co. v. Sylvester, 25 Ind. App. 207, 57 N. E. Rep. 991.

3. Hamberg v. St. Paul F. & M. Ins. Co., 68 Minn. 335, 71 N. W. Rep. 388, 26 Ins. L. J. 782.

RULE 42.

Effect of Statute Fixing Value and Measure of Damage.

A State statute fixing and determining the value of property insured in event of its destruction by fire is

superior to and supersedes any provision in the policy which would have the effect to nullify the law;1 and such a statute cannot be claimed to be unconstitutional. It does not apply to insurance on a building in another State; and, unless otherwise stated, has no application to insurance on personal property.*

1. Williams v. Bankers & Merchants' Ins. Co., 73 Mo. App. 607; Etna Ins. Co. v. Simmons, 49 Nebr. 811, 69 N. W. Rep. 125; Insurance Co. of N. A. v. Bachler, 44 Nebr. 549, 62 N. W. Rep. 911; Queen Ins. Co. v. Leslie, 47 Ohio St. 409, 24 N. E. Rep. 1072; Reilley v. Franklin Ins. Co., 43 Wis. 449; Oshkosh Gas Light Co. v. Germania Ins. Co., 71 Wis. 454, 37 N. W. Rep. 819; Havens v. Germania Ins. Co., 123 Mo. 403, 27 S. W. Rep. 718; Hartford Ins. Co. v. Bourbon County, Ky. ? 72 S. W. Rep. 739; Ritchie v. Home Ins. Co., Mo. App.

78 S. W. Rep. 341.

2. Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281, 28 Ins. L. J. 97, affg. 136 Mo. 382, 38 S. W. Rep. 85, 26 Ins. L. J. 67; Dugger v. Insurance Co., 95 Tenn. 245, 32 S. W. Rep. 5.

3. Gibson v. St. Paul F. & M. Ins. Co. (U. S. Cir.), 26 Ins. L. J. 94.

4. Green v. Lancashire Ins. Co., 69 Mo. App. 429; Warshawky v. Anchor Mutual Ins. Co., 98 Iowa, 221, 67 N. W. Rep. 237. And see Thurber v. Royal Ins. Co. (Del.), 1 Marv. 251, 40 Atl. Rep. 1111; City De Soto v. American Guardian Ins. Co. (Mo. App.), 74 S. W. Rep. 1. A valued policy statute held not to apply to insurance against lightning. Kattelmann v. Fire Assoc., 79 Mo. App. 447.

Where several concurrent policies of insurance upon real property have been written with the consent of the respective companies, and the property is wholly destroyed by fire, the aggregate amount of such insurance must, under the Missouri statute, be taken conclusively to be the true value of the property insured, and the true amount of the loss and measure of damage when so destroyed. The amount written in each policy being consented to by the other companies, they must be held to agree that the aggregate of their several policies is the value of the property. Havens v. Germania Ins. Co., 123 Mo. 403. And see subsequent appeal, 135 Mo. 649, 37 S. W. Rep. 497. And to same effect it has been held in Texas that each policy becomes a liquidated demand, and there can be no apportionment. Conti