Former opinion modified on petition for rehearing September 25, 1928. ON PETITION FOR REHEARING. (270 P. 497.) An urgent petition for rehearing has been presented by defendants in this case based upon three contentions, namely:
"1. The court erred in refusing to credit the amount of $1500.00 fire insurance which had been received by plaintiff, upon the value of the depot building destroyed.
"2. The court erred in fixing the value of the depot building destroyed at $2500.00 or any other amount in excess of $1000.00.
"3. The court erred in holding that Polk Smith was an employee of defendant Von der Hellen and that he was responsible on the principle of respondeat superior for any negligence of said Smith."
The original opinion is recorded in 263 P. 907. The second and third grounds for rehearing *Page 292 involve questions of fact. A re-examination of the evidence and the briefs convinces us that there was evidence sufficient to go to a jury to find the value of the building at the time it was destroyed. Defendant contends that the only evidence of the value was the testimony of Bullis. We cannot agree with defendant's contention in that behalf. The witness Stewart in behalf of plaintiff testified to facts from which a jury could deduce a proper conclusion as to the value. The fact that Stewart and the court adopted an erroneous method for determining the value of the building does not eliminate the evidence from which that deduction was made. There was also sufficient evidence to support the finding that Polk Smith was an employee of Von der Hellen. The findings of the judge in an action at law have the weight of the verdict of a jury. For that reason we do not disturb the findings of fact made by the court below, excepting the value of the building. The record discloses that the trial court adopted a wrong principle of law in arriving at the value; therefore, this court modified the finding in that regard: 263 P. 907, 910,911.
We are inclined to believe that the petitioners for rehearing are correct on the first basis of their petition. That a litigant is bound by his pleading is elementary law. A plaintiff will not be allowed to dispute his own allegations of fact. Admissions by the plaintiff in his complaint are conclusive against him: Grants Pass Hardware Co. v. Calvert, 71 Or. 103,109 (142 P. 569); 1 Ency. of Evidence, 398, 613, § (2); 21 R.C.L. 601, 607, §§ 148, 151; 4 Wigmore, 3619, § 2589; 22 C.J., 332, § 373. There is no dispute about the amount paid plaintiff *Page 293 by the insurance company. The original opinion in the instant case correctly states the law. The $1,500 should not have been deducted by plaintiff from his claim of damages. Plaintiff should have joined the insurance company with him in this action and demanded the full amount of the damage suffered: Rorvik v.North Pac. Lumber Co., 99 Or. 58, 94 (195 P. 163), and cases there cited. Plaintiff could have waived his entire claim for damages. He could as well waive a part of such claim. This he did in his complaint by deducting the amount paid by the insurance company from his claim. Defendants did not object to the omission to make the insurance company a party and thereby waived their right to object. The complaint was demurrable on the ground of defect of parties. That ground of demurrer was waived by answering: Or. L., § 72, and authorities cited in Rorvik v.North Pac. Lumber Co., above.
We think it was error on our part to allow plaintiff the benefit of the $1,500. Defendants were not entitled to credit for that amount. They did not pay it. Because plaintiff in his complaint deducted the amount he received from the insurance company from his demand we think the court is without authority to give him judgment for the amount received from the insurance company. On the contrary, that amount should be deducted from the value of the building. A plaintiff is never allowed more than he demands in actions for damages. Plaintiff is bound by his admission and allegations respecting the insurance, and the court should not deny defendants the benefit thereof. *Page 294
For these reasons the former judgment in this court in the instant case will be modified so as to deduct from the $2,500, which we find to be the value of the building destroyed, the sum of $1,500 and render judgment in favor of plaintiff in the sum of $1,000. The case is remanded to the Circuit Court for Jackson County, with directions to enter judgment in favor of plaintiff for the sum of $1,000 against defendants Von der Hellen and Eugene J. Dietz, who will recover costs in this court but not in the court below. MODIFIED.
BEAN and COSHOW, JJ., not sitting.