The opinion
HUMPHREYS, Justice
(concurring).
I agree that where the contract of insurance specifies that depreciation is a factor to be taken into consideration in determining loss, that it should be taken into consideration. So, I concur in the result reached by the majority, that the class action cannot be maintained.
The action is predicated on the proposition that, as a matter of law, depreciation is not a factor to be taken into consideration. Since contracts must be enforced as written, depreciation is a factor where this is stipulated.
My concern about the opinion is that it may be read as excluding proof of the cost of repairs as a means of proving a partial loss. I have concluded it does not do this, even though the opinion holds Judge Felts’ statement in Third National Bank v. American Equitable Ins. Co., 27 Tenn.App. 249 , 178 S.W.2d 915 (1943) is dictum.
As dictum, it may not be adequate to establish, as a matter of law, that depreciation is not a factor in fixing loss, but this does not reduce the utility of this proposition in a suit to recover on a policy.
*461 Mention should also be made of the fact that the opinion in this case does not rule out the factor of appreciation in value, for which the insured has paid an increased premium.
Limited, as I read the opinion to be, to the proposition that depreciation is not ruled out of consideration, as a matter of law, I concur.