Ampleman v. North British & Mercantile Insurance

Rombáuer, P. J.,

delivered the opinion of the court.

This case is substantially the same in its facts, with the case of the same plaintiff against the Citizens’ Insurance Company, ante, p. 308. The insurance was on the same building, the same proceedings were had in arbitrating the loss, and the same defenses were interposed in the action upon the policy.

The main difference between the two cases is, that in this case the court did instruct the jury as to the meaning of the words “wholly destroyed,” which in the former case it omitted .to do, and the only additional question for our consideration is whether the instruction thus given was correct, or whether the court should have given the instructions as asked by the defendant.

The defendant asked the following instruction:

“ 1. The court instructs the jury that if they find from the evidence that after said fire there remained any portion of the walls of said building that could be used for rebuilding it after said fire, and that such remaining walls were sufficient to support that part of a building •of the same value, weight and dimensions and construction as the building burned, and that by using these walls said building could be built for a less sum of money than if they were not to be used, then the building was not wholly destroyed, and your verdict will be for the amount of tender and payment into court.”

The court refused to give the instruction in that form, but gave it after inserting the words “ substantial or considerable” so as to make the first part of said instruction read: “The court instructs the jury that if they find from the evidence that after said fire, there remained anv’substantial or considerable portion of the-walls of said building that could be used for rebuilding, it, after said fire,” etc.

In conformity with the views expressed in Ampleman v. The Citizens’ Insurance Company, we must-conclude that under the evidence in this case, the refusal of defendant’s instruction and its modification by the court was prejudicial error. The great weight of the testimony tended to show that two of the four walls-of the main building were but little injured by the fire, if at all, in fact continued to be used in part after the-fire, as walls protecting a tenant’s occupancy. The question for the jury was not whether any substantial or considerable portion of the original walls remained, standing and uninjured, but whether any portion-thereof remained in that condition. The words substantial and considerable permit a latitude of construction, which places the defendant wholly at the mercy of' the jury, and fixes no standard by which their finding could be reviewed' on the facts by the trial court.

For this error, the judgment will be reversed and. the case remanded. So ordered.

All concur.