
    (No. 685
    ALBERT BROWN and ODESIE BROWN, Claimants, v. STATE ROAD COMMISSION, Respondent.
    Opinion filed June 23, 1950
    
    J. A. Cain, for claimants.
    W. Bryan Spillers, Assistant Attorney General and Harry R. Bell, State Claims Agent, for respondent.
   A. D. KENAMOND, Judge.

The fire which originated in the state road commission’s garage in Huttonsville on April 21, 1948, spread to the properties to the south, first to J. A. Cox’s store, then to the eight-room dwelling house of Albert and Odesie Brown, causing considerable damage to their dwelling and destroying household goods and clothing belonging to the eight members of the household. Since a majority of the court of claims has found the state road commission liable and the claimants, J. A. Cox et al, in claim No. 682 (reported elsewhere in this volume) should be awarded damages, it follows that the claimants in this case should also be awarded damages.

Itemized expenditures for repair of the dwelling, not including painting, amounted to $3,754.20, which included an item of $600.00 for concrete block foundation under parts of the house where no such foundation existed prior to the fire. In estimating replacement costs this item of $600.00 should have been deducted, thus leaving $3,154.20. To apply toward the latter amount Albert and Odesie Brown had received $2000.00 from insurance, so their total loss from structural damages was $1,154.20. Exterior and interior painting made necessary because of damages caused by fire and estimated at $195.00 and $285.00 respectively, a total of $480.00 is accepted as a reasonable claim.

Odesie Brown testified that she and her husband had spent $2250.00 to refurnish their eight-room house. It was claimed that no furniture was rescued in usable condition. According to Odesie Brown the furniture that had to be replaced was “good furniture”; she and her husband had accumulated it over the period of thirty-two years since their marriage. Further than this no evidence was offered to show the value of the furniture destroyed nor were any receipts presented to show expenditures for the new furniture. Mrs. Brown stated that they paid cash to Montgomery Ward. The claimants also ask for $2000.00 to cover expenditures for new clothing to replace clothing lost by the eight members of the family, six of whom were away from home at the time of the fire.

In the lack of factual detail with reference to actual losses in furniture and clothing, and assuming that the quality and serviceable value of clothing and household furnishings destroyed would be inferior to new and unused replacements, we believe the following would be proper and reasonable amounts needed to restore losses of Albert and Odesie Brown:

Structural repairs not covered by insurance .$1,154.20
Painting, exterior and interior ..... 480.00
Household furnishings and clothing ... .. 500.00
Total .. . — .$2,134.20

We, a majority of the court, recommend an award of two thousand one hundred thirty-four dollars and twenty cents ($2,134.20) to Albert and Odesie Brown.

MERRIMAN S. SMITH, Judge,

dissenting.

The causes and circumstances which created this claim for damages are identical and the same as those which grew out of Claim No. 682, J. A. Cox et al v. State Road Commission. As a result thereof, the same grounds for dissenting to an award in that claim apply equally to the instant claim. Therefore I hereby deny an award.

[Judge Bland did not participate in the determination of this case.]  