E. J. Kinzer, Appellee, v. The National Mutual Insurance Association, Appellant, 88 Kan. 93

The opinion of the court was delivered by Porter, J.: Authorities are cited to the effect that the written application and policy are to be construed together and that the policy must be held to cover the interest of the .insured in the brick wall. We do not understand that the trial court ruled differently. The statute so provides. (Gen. Stat. 1909, §4226; Smith v.

Insurance Co., 82 Kan. 697, 702, 109 Pac. 390.) It follows by no means, however, that appellant is correct in the contention that the value of the appellee’s interest in the brick wall should have been deducted' from the amount for which the appellee could recover for the loss to the other property. The contention would be correct if the policy had by its terms placed a separate valuation on the different properties, or in other words if there had been in the policy a distribution of the insurance so as to provide for $250 on the interest of the insured in the brick wall and $750 on the frame structure.

But there was no distribution of the amount of insurance nor a separate valuation of the different properties. (19 Cyc. 838.) The situation is the same as though the policy had provided for $1000 insurance on two buildings, and only one had been damaged by the fire. In an action upon such a policy the liability of the insurer would be the actual loss to the one building but could not exceed $1000. The valued-policy law can have no room for operation for the reason that all the property included within the $1000 valuation was not wholly destroyed, the brick wall being practically uninjured.

While the court finds that the frame building was totally destroyed, the amount of the recovery is not predicated upon the conclusive effect of this fact under the valued-policy law. (Gen. Stat. 1909, § 4260.) On the contrary the court heard the evidence of both parties as to the actual loss sustained. By reason of the action of the city authorities in refusing permission to repair after the appellant had elected to repair, the amount of the loss could only be ascertained by determining what it would cost to repair the structure or restore it to its original condition.

The policy in express terms provides that such shall be the measure of liability. There appears to be no difference in the contentions of the parties respecting the law, which controls in determining whether or not there has been a total loss of a building by fire. The appellant cites and relies upon the very cases which the trial court must have had in mind in arriving at the conclusion that the building in controversy was wholly destroyed. (Insurance Co. v.

Heckman, 64 Kan. 388, 67 Pac. 879, and cases cited in the opinion.) This court there declared the rule to be that: “Although some portion of the building may remain after the fire, yet if such portion can not be reasonably used to advantage in the reconstruction of the building or will not, for some* purpose, bring more money than sufficient to remove the ruins, such building is, in contemplation of law, a ‘total loss’ or ‘wholly destroyed.’ ” (p. 395.) Another case cited by appellant which recognizes the same rule is Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068.

There the test is said to depend upon the question “whether a reasonably prudent owner, uninsured, desiring such a structure as that in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such remnant as” a basis. See also note to the same case in 59 Am. St.

Rep. 811, where the author uses the following language: “Undoubtedly, no matter how great a portion of the building may remain unconsumed, yet if it is so injured that it must be torn down or that what remains can not be utilized in reconstructing the building without incurring greater expense than if it were not so utilized, the property must be regarded as having been ‘wholly destroyed,’ ” citing O’Keefe v. Ins. Co., 140 Mo. 558, 41. S. W. 922, German Ins. Co. v. Eddy, 36 Neb. 461, 54 N. W. 856, Harriman and another v. The Queen Ins. Co. of London and Liverpool, 49 Wis. 71, 5 N. W. 12, and Seyk and others v.

The Millers’ Nat. Ins. Co., 74 Wis. 67, 41 N. W. 443. That the trial court proceeded upon the correct theory appears from the finding that the value of the salvage would not exceed the cost of tearing it down and removing the debris. The court, upon conflicting evidence, found the amount of the loss, and the claim that the finding is contrary to the weight of the evidence can not be considered. The witnesses varied in their estimates as to the amount it would Cost to repair or rebuild.

The mere fact that the court saw fit to adopt the highest estimate of the witnesses for appellee is no ground for a claim of error. The judgment is affirmed.