The defendant insurance company had pleaded that the building insured was not totally destroyed, but that it was only partially destroyed, and therefore the plaintiff was not entitled to recover the full amount named in the policy, but only the damage actually done by the fire.
As shown by the majority opinion, the plaintiff, Dansby, testified that his house was completely destroyed, burned to the ground; that there was no lumber left; that there was nothing left but a pile of ruins; that T. B. Hubbard, for the plaintiff, testified that he considered the house a total loss; that the concrete foundation, above the ground, was burned and cracked and crumbled clear down to the dirt; that there was nothing left that he, as a builder of many years, would consider as suitable to put back Into the building if rebuilt. J. B. Townsend, for the plaintiff, testified that the only thing left of the house was a pair of steps that were not damaged.
For the purpose of proving its material defensive allegation — that is, that the house was only partially destroyed — and to rebut the testimony of the witnesses of the plaintiff with reference to whether or not there was a total loss, the defendant offered to prove by the witness Townsend, an experienced builder of many years: First, that the foundation of the house and the concrete steps leading up to the floor of the building were not damaged by the fire; second, that said foundation and steps were substantial parts of the building, and that, in rebuilding said house as it was before the fire, they would have a reasonable value of $1,000; and, third, that a reasonably prudent owner, who had no insurance and who desired to rebuild the house as it was before the fire, would use said foundation and steps, and that by so doing the house could have been replaced in as good condition as it was before the fire, at a cost of $23,000. All this proffered testimony was, at the request of counsel for the plaintiff, rejected by the trial court, and the jury were instructed to return their verdict for the plaintiff. To this action of the court the defendant reserved its bill of exception.
The majority of this court holds, in effect, that, as the policy of insurance made no mention of the foundation of the house as being any part of the property insured, and does specifically mention the heating and lighting apparatus and all permanent fixtures as being covered thereby, it is evident that it was not intended by the parties to the contract of insurance that the policy would include the foundation.
With all due respect to my associates, to my mind such contention is extremely absurd. It could as well be contended that a policy, which in general terms insures a house, does not cover its metal roof and its stone, concrete, or brick chimneys and flues, because they were not specially mentioned as being covered by the policy.
The house burned in the instant case was insured for $35,000. The trial court permitted the insurer to offer testimony tending to show that it was totally destroyed by the fire, and refused to allow the insurer to show that there was a partial loss only, and that the house could have been restored to its former condition for $23,000. Under these circumstances I am justified in assuming that neither the trial court nor this court knew nor now knows the nature of the foundation of the destroyed house, its height above the ground, its condition after the fire, or its value after such fire. It follows, then, that they could not know whether a reasonably prudent person, who had no insurance and who desired to rebuild the house as it was before the fire, would, in rebuilding, use said foundation as it was after the fire.
The Supreme Court of this state, in the case of Royal Insurance Company v. McIntyre, 90 Tex. 170, 37 S.W. 1068, 35 L.R.A. 672, 59 Am. St. Rep. 797, in speaking of the term a "total loss" as that is used in the total loss statute of this state, said: *Page 559 "There can be no total loss so long as a substantial remnant of thestructure standing in place is reasonably adapted for use as a basis uponwhich to restore the building to the condition in which it was before theinjury, and whether it is so adapted depends upon whether a reasonablyprudent owner uninsured desiring such a structure as the one in questionwas before the injury, would, in proceeding to restore the building toits original condition, utilize such remnant as such a basis."
In the present case the plaintiff in error did not merely offer evidence to show the value of the foundation, and that a reasonably prudent man would use such foundation in rebuilding the building, but it offered to prove by an experienced contractor that such a prudent owner, in rebuilding, would use the foundation, and in addition thereto two sets of large stone steps which were undamaged by the fire. Plaintiff in error further offered to prove that such steps and such foundation were a substantial remnant of the structure insured, and that they had a reasonable value in the rebuilding of the building of $1,000. I think that this testimony offered by the plaintiff in error comes directly within the rule laid down by the Supreme Court of this state in the McIntyre Case.
I respectfully dissent from the holding of the majority that the foundation of a house cannot be considered as a part of a building in determining the question of a total loss, unless it is specifically mentioned as being covered by the policy insuring the building. Under such holding, if a building, including the foundation, has a reasonable value of $20,000 to $25,000 and the value of the foundation, say of concrete 6 feet above the ground, is $4,000, the insurance company would be precluded from showing that the foundation was undamaged by the fire, and that it could and would be used by a reasonably prudent owner in reconstructing or replacing the building.
Because of the error of the trial court in rejecting the proffered testimony with reference to the foundation of the insured building and its value, I think the judgment of the trial court should be reversed, and the cause remanded.