Waynesboro Mutual Fire Insurance Co. versus Creaton.
1. Where a loss occurs under a policy of insurance against fire, and suit is brought on the policy, the valuation in the policy is not the controlling proof of actual value, but the jury must find from the evidence yvhat the actual value of the building was, and that must not be what it would cost to rebuild, but what is shown to be its money value under all the circumstances of its situation and surroundings at time of the fire.
2. Where the plaintiff presents a point, embodying th above principles as a rule for adjusting the loss, it is error for the court o answer it by charging that the jury are at liberty to adjust the loss upon the proofs before them.
June 20th 1881. . Before Sharswood C. J., Merour, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
Error to the Court of Common Pleas of Cameron county: Of May Term 1881, No. 64.
Debt, by John Creaton against The' Waynesboro Mutual Fire Insurance Company, upon a policy of insurance dated May *45214th 1878, for $1,000, on a certain building in the town of Emporium belonging to the plaintiff.
On the trial, before Williams, P. J"., it appeared that the policy contained, inter alia, the following clause:
“ 15. In case differences of opinion should arise between the parties hereto, as to the amount of any loss or damage under this policy, or the relative condition or value of any property rebuilt, repaired or replaced by the company, the subject shail be submitted to the judgment of two disinterested and competent men, each party selecting one, [and in case of disagreement they to select a third] and the award in writing of such appraisers, or any two of them, shall be binding and conclusive upon the matter so submitted, upon both parties to this policy.” After the date of the policy plaintiff effected another insurance for $1,000 upon the same premises in the Susquehanna Insurance Company'.
On August 1st 1878, the insured premises were totally destroyed by ñre. The plaintiff and the company defendant differing as to the value of the destroyed -premises, the matter was referred to John W. Kriner and John Norris, who found that they were worth $2,107.91. The company declining, to pay plaintiff the full amount of the face of his policy, he then brought this suit.
Defendant requested the Court to charge, inter alia: 12. The valuation in the policy is not the controlling proof of actual value, but the jury must find from the whole evidence what the actual value of the building was, and that must be not what it would cost to rebuild but what is shown to be its money value under all the circumstances, of its situation and surroundings at time of lire. Answer: “ If the jury find that there was actual submission of this loss to the determination of arbitrators, and such determination has been made without fraud on the part of the plaintiff or the arbitrators or gross mistake — it is binding upon both parties. If there was no actual agreement 'to submit the adjustment to Norris and Kriner, but they were employed to make an estimate as proof of loss, then the value put by them on the building is not conclusive, and the jury are at liberty to adjust this loss upon the proofs before them. The policy sued on was.concurrent with another of same amount. The defendant would be liable, therefore, in that event, for only half the actual loss incurred. For example: if the building was found to be worth $1,200 defendant would be liable for one-half 'that amount, and interest thereon.”
Verdict and judgment for the plaintiff in the sum of $1,120. Defendant thereupon took this writ, assigning for error, inter alia, the answer of the court to its twelfth point as above.
*453Joseph Douglas and J. G. Johnson, for plaintiff in error.
Newton and Green, for defendant in error.
October 3d 1881.
Mr. Justice Green
delivered tlie opinion of the court,
We find no serious error in tins record until we come to tbe answer of tbe court below to tbe defendant’s twelfth point. Tins point called upon tbe court to lay down a rule to govern tbe jury in fixing tbe value of tbe building, and it should have been affirmed, Tbe answer neither affirms nor denies’ tbe point. In fact, it cannot be said to be responsive. We have no fault with that part of it which says: “If tbe jury find that there was actual submission of this loss to tbe determination of arbitrators, and sucli determination lias been made without fraud on tbe part of tbe plaintiff, or tbe arbitrators, or gross mistake, it is binding upon both parties.” After stating tbe converse of this proposition tbe learned judge said : “ Then tbe value put by them upon tbe building is not conclusive, and tbe jury are at liberty to adjust this loss upon tbe proofs before' them.” Put bow adjust tbe loss upon tbe proofs before them? It was just here tbe point was intended to indicate tbe rule, and tbe answer wholly fails to furnish it. This was error.
Judgment reversed and a venire facias de novo awarded.