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sured; the word “then” in the limiting clause (see Rule 1) “shall not exceed what it would then cost the assured to replace," means just what it says and not what it would cost the assured to replace from his own factory after delay of manufacturing or reproducing, etc.;' in ascertaining the amount of loss it is not important or conclusive what insured paid for his goods or property, whether in money or otherwise, or whether given to him. In either event he would be ertitled to the benefit of his bargain or gift. The only question
. is as to the fair cash value of the goods destroyed.” The word “then” may be construed as meaning within reasonable time.3
1. Hartford Ins. Co. v. Cannon, 19 Tex. Civ. App. 305, 46 S. W. Rep. 851; Mitchell v. St. Paul German Ins. Co., 92 Mich. 594, 52 N. W. Rep. 1017; Hickerson v. German-American Ins. Co., 96 Tenn. 193, 33 S. W. Rep. 1041, 25 Ins. L. J. 422. And see Parrish v. Virginia Ins. Co., N. C. 20 Ins. L. J. 95. And see Rules 10, 11.
2. Chapman v. Rockford Ins. Co., 89 Wis. 572, 62 N. W. Rep. 422, 28 L. R. A. 405. See Rule 11. 3. Texas Moline Plow Co. v. Niagara Ins. Co., Tex. Civ.
87 S. W. Rep. 192.
Where insured is a manufacturer and property covered is machines manufactured by him, under the limitation in the policy that in no event should the loss exceed what it would “cost the insured to repair or replace the same with material of like kind and quality,” the measure of damage is not the market value of the property destroyed, but what it will cost the insured as a manufacturer to replace it.
Standard Sewing Machine Co. v. Royal Ins. Co., 201 Pa. St. 615, 51 Atl. Rep. 354. See Rule 9.
Cash value of property at time of the fire means what it would cost the insured in cash to purchase property of like kind and quality;' or proof of fair market value is the equivalent of actual cash value;cost of property may be some evidence of value but is not conclusive;cash value cannot include estimated profits. Evidence of market value and cost of replacing are both admissible, and if they conflict the verdict of a jury is conclusive.
1. German Ins. Co. v. Everett (Tex.), 36 S. W. Rep. 125; Texas Moline Plow Co. v. Niagara Ins. Co., Tex. Civ. App.
87 S. W. Rep. 192. 2. Manchester Ins. Co. v. Simmons, 12 Tex. Civ. App. 607, 35 S. W. Rep. 732; Fisher v. Crescent Ins. Co., 33 Fed. Rep. 544; Western Assur. Co. v. Studebaker, 124 Ind. 176. And see Manchester Assur. Co. v. Feibelman, 118 Ala. 308.
3. Bini v. Smith, 36 App. Div. 466, 55 N. Y. Supp. 842; Cheever v. Scottish Union & Nat. Ins. Co., 86 App. Div. 328, 83 N. Y. Supp. 730. See Rule 9.
4. Niagara Ins. Co. v. Heflin (Ky.), 60 S. W. Rep. 393.
5. Virginia F. & M. Ins. Co. v. Cannon, 18 Tex. Civ. App. 588, 45 S. W. Rep. 945. But compare Rules 1, 5, and 6.
Auction Price as Evidence.
The price damaged goods brings at auction may be evidence of their value after the fire, but is not conclusive.
1. Clement v. British-America Assur. Co., 141 Mass. 298; Reading Ins. Co. v. Engelhoff, 115 Fed. Rep. 393.
2. Reading Ins. Co. v. Engelhoff, supru.
RULE 13. Allowance for Depreciation Burden of Proof. Cash value should include an allowance, if any, for depreciation, but in event of a trial the burden of proof in establishing depreciation rests upon the insurance company."
1. Erb v. German-American Ins. Co., 98 Iowa, 606, 67 N. W. Rep. 583; Commercial Ins. Co. v. Allen, 80 Ala. 571. And see Rule 11.
2. Reade v. State Ins. Co., 103 Iowa, 307, 72 N. W. Rep. 665; Hegard v. California Ins. Co., 72 Cal. 535, 14 Pac. Rep. 180.
Amount Paid for Assignment of Policy not Evidence.
An amount paid for an assignment of the policy is not evidence of the value of the property covered thereby.
Commercial Ins. Co. v. Friedlander, 156 Ill. 595, 41 N. E. Rep. 183, 24 Ins. L. J. 789, affg. 57 Ill. App. 372.
When Property is Destroycd.
Damage to property to extent that it is rendered useless for purpose used is destruction of it; if any value remains the insurance company is entitled to benefit of it.
Manchester Ins. Co. v. Feibelman, 118 Ala. 308, 329, 23 So. Rep. 759, 27 Ins. L. J. 855. And see Hoffman v. Western Ins. Co., 1 La. Ann. 216.
Assured Competent Witness.
The assured, or any person who is acquainted with the value of the property destroyed, is competent to give his opinion or evidence as to such value, although not technically an expert;' and it is not disproved by his (assured's) sworn tax list.2
1. Baille v. Western Assur. Co., 49 La. Ann. 658, 21 So. Rep. 736, 26 Ins. L. J. 497; Western Home Ins. Co. v. Richardson, 40 Nebr. 1, 58 N. W. Rep. 597, 23 Ins. L. J. 501; Thomason v. Capital Ins. Co., 92 Iowa, 72, 61 N. W. Rep. 843; Names v. Union Ins. Co., 104 Iowa, 612, 74 N. W. Rep. 14; Sisk v. American Cent. Ins. Co., 95 Mo. App. 695, 69 S. W. Rep. 687; Phonix Ins. Co. v. Bowersox, 6 Ohio Cir. Ct. Rep. 1; Rademacher v. Greenwich Ins. Co., 75 Hun, 83, 27 N. Y. Supp. 155; Machen v. Lamar Ins. Co., 11 Ins. L. J. 619; Glaser v. Home Ins. Co., 93 N. Y. Supp. 524; Tucker v. Colonial Ins. Co., W. Va. 51 S. E. Rep. 86.
2. German Ins. Co. v. Niewedde, 11 Ind. App. 624, 39 N. E. Rep. 534. And see Probst v. American Central Ins. Co., 64 Mo. App. 408.
Two-thirds, Three-fourths, and Coinsurance Clauses Statutes.
Such special clauses in the policy limiting the liability to “ two-thirds," “ three-fourths,” and “coinsurance” clauses must be given effect in determining the amount of loss and liability of the company, except when a statute fixes and determines the amount of loss as fixed by the amount of the policy ;but notwithstanding such a statute, may be binding as to personal property.3
1. Blinn v. Dresden Mut. Ins. Co., 85 Me. 389, 27 Atl. Rep. 263, 23 Ins. L. J. 707; Home Ins. Co. v. Field, 42 Ill. App. 392; Millis v. Scottish Union & Nat. Ins. Co., 95 Mo. App. 211, 68 S. W. Rep. 1066; Pennsylvania Ins. Co. v. Moore, 21 Tex. Civ. App. 528, 51 S. W. Rep. 878; Roberts v. Insurance Co. of N. A., 94 Mo. App. 142, 72 S. W. Rep. 144; Sun Ins. Co. '. Tufts, 20 Tex. Civ. App. 147, 50 S. W. Rep. 180; Egan v. Mutual Ins. Co., 5 Denio, 326; Brown v. Quincy Ins. Co., 105 Mass. 396 ; Ervin v. New York Central Ins. Co., 3 T. & C. (N. Y.) 213; Home Ins. Co. v. Adler, 71 Ala. 516; Malin v. Mercantile Ins. Co.,
80 S. W. Rep. 56. 2. Hickerson v. German-American Ins. Co., 96 Tenn. 193, 33 S. W. Rep. 1041, 25 Ins. L. J. 422; Caledonia Ins. Co. v. Cooke, 101 Ky. 412, 41 S. W. Rep. 279, 27 Ins. L. J. 318; Sachs v.
London & Lancashire Ins. Co., 113 Ky. 88, 67 S. W. Rep. 23, 23 Ky. L. Rep. 2397; Home Ins. Co. v. Bean, 42 Nebr. 537, 60 N. W. Rep. 907, 24 Íns. L. J. 516; Bammesel v. Brewers’ Ins. Co., 43 Wis. 463.
3. Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578.
Under the terms of the Mississippi statute such clauses are inoperative as to both real and personal property. Hartford Ins. Co. v. Shlenker, 80 Miss. 667, 32 So. Rep. 155; Western Ins. Co. v. Phelps, 77 Miss. 625, 27 So. Rep. 745. See statute in chapter twelfth. As amended in 1904, see Vol. 2. As to effect of Wisconsin statute, see Newton v. Theresa Ins. Co., Wis. 104 N. W. Rep. 107.
RULE 18. Three-fourths Clause — Valued Policy Statute. The three-fourths clause limiting the liability of the company is valid as to personal property where terms of a valued policy statute are limited to real estate or buildings;' but is invalid as to buildings.?
1. Hudson v. Scottish Union & National Ins. Co., 110 Ky. 722, 62 S. W. Rep. 513; Germania Ins. Co. v. Ashby, 112 Ky. 303, 65 S. W. Rep. 611.
2. Scottish Union & National Ins. Co. v. Enslie, 78 Miss. 157, 28 So. Rep. 812. And see Rule 17.
Household Furniture and Wearing Apparel.
When property insured is household furniture and wearing apparel in actual use, if there is a market value, that may afford a proper criterion; if no market value, simple fair value is what is allowable; such value is not necessarily or conclusively determined by what a junk-shop or second-hand dealer would give, or what they would bring at forced sale;' or the cost of such property with proper allowance for depreciation according to the facts or condition, etc., is competent