Utz v. Insurance Co. of North America

• Citation: 139 Mo. App. 153,122 S.W. 318
• Parties: UTZ v. INSURANCE CO. OF NORTH AMERICA.
• Decision Date: 01 November 1909
• Court: Court of Appeal of Missouri (US)

122 S.W. 318

139 Mo. App. 153

UTZ v. INSURANCE CO. OF NORTH AMERICA.

Kansas City Court of Appeals. Missouri.

November 1, 1909.

Rehearing Denied November 15, 1909.

1. INSURANCE (§ 378) — OTHER INSURANCE — NOTICE TO AGENT — "FURNITURE."

Notice to insurer's agent that insured had other insurance on his "furniture" was notice of other insurance on a piano.

2. INSURANCE (§ 668) — ACTION ON POLICY — VEXATIOUS DELAY — STATUTORY PENALTY — QUESTIONS FOR JURY.

Under Rev. St. 1899, § 8012 (Ann. St. 1906, p. 3808), allowing insured, in an action on a policy to recover, in addition to the amount of the loss, damages not exceeding 10 per cent. thereof and a reasonable attorney's fee, if it appears that defendant has vexatiously refused to pay the loss, when there is competent evidence tending to prove vexatious delay, the question is for the jury.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Michael Utz against the Insurance Company of North America. Judgment for plaintiff, and defendant appeals. Affirmed.

Reed, Atwood, Yates, Mastin & Harvey and Neville & Grier, for appellant. Brewster, Ferrell & Mayer and Culver & Phillip, for respondent.

ELLISON, J.

Plaintiff instituted this action on a policy of insurance issued to him by defendant, and recovered judgment in the trial court for loss of his property, as well as for a penalty for vexatious refusal to pay the loss. The policy covered loss of plaintiff's house in the sum of $700 and loss of piano in the sum of $300.

It is contended by defendant that plaintiff had other insurance on the piano, of which it was not advised, and that therefore the policy was avoided under specific provisions therein to that effect. The evidence, as plaintiff interprets it, shows that defendant's agent was notified of the other insurance. Defendant concedes that its agent had notice of $200 other insurance on his "furniture," but asserts that such notice was not a notice of insurance on a musical instrument, such as a piano. We do not think the point well taken. We held, in Bowne v. Insurance Co., 46 Mo. App. 473, that where there was an insurance of $1,300 on "household and kitchen furniture, useful and ornamental," it included a Japanese vase valued at $500, although it was not specifically named. In Crossman v. Baldwin, 49 Conn. 490, there was a contract to purchase "all the furniture" in a certain hotel, and it was held to include a piano. In Sumner v. Blakslee, 59 N. H. 242, 47 Am. Rep. 196, pianos were held to be included in household furniture mentioned in a chattel mortgage. In Alsup v. Jordan, 69 Tex. 300, 6 S. W. 831, 5 Am. St. Rep. 53, it was held that an exemption from execution of "household and kitchen furniture" would include a piano. In Lee v. Gorham, 165 Mass. 130, 42 N. E. 556, the statute providing that conditional sales of ...