Tokio Marine Fire Ins. v. Anderson

^* Rehearing denied January 10, 1929. The appellee brought this suit on an insurance policy and recovered a judgment for $641.50 for damages to a building caused by a windstorm. The policy sued on was for $2,000, and contained the following provision:

"It is a part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that the assured shall maintain insurance on each item of property insured by this policy of not less than fifty per cent. of the actual cash value thereof; and that failing so to do, the assured shall be an insurer to the extent of such deficit and bear such proportionate part of loss on each item."

The district judge, before whom the case was tried, rendered a judgment for the full amount of the damages sustained. The appellant has appealed, and contends that the evidence conclusively shows that the building was not insured for 50 per cent. of its value, and that under the coinsurance provisions of the policy the insured was not entitled to recover the full value of the damage.

The evidence upon the question of the value of the building was conflicting. That of the appellee, who testified in his own behalf, was that $4,000 was the fair actual cash value of the building. Appellant offered testimony to show it was of a greater value. The issue presented merely one of the credibility of the witnesses and the comparative value of their estimates. We are not prepared to say that the court erred in concluding as he did. The Judgment will therefore be affirmed.