Honey v. Pacific Automobile Indemnity Exchange

WASTE, J.

In this action, to recover on a policy of insurance on an automobile issued by the defendants, the plaintiff recovered judgment for $903.50 for loss occasioned by fire. Defendants appeal, claiming that their liability does not exceed the sum of $500.

Among other provisions the policy indemnified against loss or damage by collision, and covered loss or damage by fire. The maximum fire risk assumed by the insurer was limited to $1,500, in excess of $1,000 insurance permitted to be carried elsewhere. Soon after its purchase the automobile was badly damaged by collision, and the defendant

[337]

paid plaintiff $1,000 for the loss occasioned thereby. Plaintiff then took the automobile to a repair shop for the purpose of having the car repaired. All of the repairs were completed and all parts replaced. Mechanically the car was as good as new, according to competent testimony, and it “fell short of being equal to new in condition” only because whatever painting of the oar was required had not been done. After being tested, the car was taken to a paint shop, where the-fire occurred. It was partially destroyed and was eventually sold for $300. The plaintiff received $1,000 from the excess insurance carrier, and seeks in this action to recover from the defendants the balance of the loss sustained.

The plaintiff paid $2,575 for the automobile. He added to its equipment certain accessories, the total cost being $2,845. After the purchase the selling price advanced, and the cost of a car of like type and model, with the same equipment, was $2,950 at the time of the fire. Certain of the accessories, amounting in value to $147.50, were not with the car when the fire occurred. The painting job would cost $54. The court found the value of the ear, with the repairs which had been completed, and the parts which had been replaced, after deducting $54 for the painting which had not been done, and the sum of $147.50 for the equipment which had been removed, to be the sum of $2,203.50. Deducting from that sum the $300 received by plaintiff as the salvage of the car after the fire, and the further sum of $1,000 paid on the loss by the carrier of the excess insurance, the court entered judgment against defendants for $903.50.

A stipulation of the policy provides that the liability of the insurer “shall be reduced by the amount of any property loss or damage until repairs have been completed or parts replaced, when it shall attach for amounts originally written.” Appellants take the position that having paid the plaintiff the sum of $1,000 for the property loss and damage caused by the collision, the $1,500 liability under the policy for loss by fire was thereby reduced by that amount until