139 S.W. 265 (Mo.App. 1911), Rogers v. Connecticut Fire Insurance Company

Citation:139 S.W. 265, 157 Mo.App. 671
Opinion Judge:JOHNSON, J.
Attorney:R. H. Musser and F. B. Ellis for appellant. John A. Cross for respondent.
Case Date:June 12, 1911
Court:Court of Appeals of Missouri

Page 265

139 S.W. 265 (Mo.App. 1911)

157 Mo.App. 671

HUGH L. ROGERS, Respondent,



Court of Appeals of Missouri, Kansas City

June 12, 1911

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.


R. H. Musser and F. B. Ellis for appellant.

(1) Plaintiff's instruction numbered 1 is erroneous in that it fails to authorize the jury to take into consideration, in making up their verdict, the defense to said policy, namely, "that said property was not a total loss, only partial," and said instruction authorizes a verdict for plaintiff if they find that plaintiff notified defendant of said loss, and defendant denied liability under said policy, thus directing and telling the jury that if such was done, defendant's full liability under said policy was settled and fixed, under said circumstances, and further recites if defendant failed to furnish a blank proof of loss, etc., this aided said liability. R. S. 1909, sec. 7022; Stevens v. Ins. Co., 120 Mo.App. 88; Branigan v. Ins. Co., 102 Mo.App. 70; Havens v. Ins. Co., 123 Mo. 403. (2) Plaintiff's instruction No. 2 adds to the error in instruction No. 1, giving additional reasons for the consideration of no other defense by the jury than the additional insurance not being indorsed upon the policy, and the record does not support it. Atlas Reduction Co. v. Ins. Co., 71 C. C. A. 21, 138 F. 497; Gray v. Ins. Co., 155 N.Y. 180; Hutchinson v. Ins. Co., 21 Mo. 97; Deitz v. Ins. Co., 38 Mo. 85; Rothschild v. Ins. Co., 62 Mo. 362; Carpenter v. Ins. Co., 16 Pet. 494; Turner v. Ins. Co., 16 F. 454. (3) If this property had any value outside of the purpose for which it was used, there cannot be a total loss within the meaning of the law, and the instruction does not take into account any ability there might be to repair or restore the property, of which there was a great amount of creditable testimony in the case. Brown v. Weldon, 99 Mo. 465; Havens v. Ins. Co., 123 Mo. 123. (4) The mere fact that defendant litigated this claim of total loss of plaintiff does not prove it vexatious, nor justify its submission to a jury. There was a just and reasonable defense supported by ample evidence. Utz v. Ins. Co., 139 Mo.App. 156; Blackwell v. Ins. Co., 80 Mo.App. 75; Renfro v. Ins. Co., 129 S.W. 448; White v. Reitz, 129 Mo.App. 313; McGinnis v. Railroad, 200 Mo. 363.

John A. Cross for respondent.

(1) It cannot be successfully denied that the evidence in this case establishes a waiver of the condition of the policy pleaded by appellant in its answer, the weight and sufficiency of which is always a question of fact for the jury to determine. Pelkington v. Ins. Co., 55 Mo. 172; Gale v. Ins. Co., 33 Mo.App. 664; Hoffman v. Ins. Co., 56 Mo.App. 301; Porter v. Ins. Co., 62 Mo.App. 526; 2 Wood Fire Ins., p. 943. Prior to the issue and delivery of the policy to respondent, appellant's agent, Stuckey, had full knowledge of all the other additional insurance on the property covered by the policy in suit. This agent had full authority under our decisions to waive the written conditions of the policy as to additional insurance, being in all things the alter ego of the company. The above facts constitute a waiver of the terms of the policy, and the appellant is estopped from pleading a forfeiture of the same as a defense to this suit. Nichell v. Ins. Co., 44 Mo. 420; Laundry Co. v. Ins. Co., 151 Mo. 90; Thompson v. Ins. Co., 169 Mo. 12; Polk v. Ins. Co., 114 Mo.App. 514. (2) The property insured by the policy in suit was "wholly" destroyed within the meaning of section 7020, Revised Statutes of 1909. Nave v. Ins. Co., 37 Mo. 430; Haven v. Ins. Co., 123 Mo. 403; Banard v. Ins. Co., 38 Mo.App. 106; Jacobs v. Ins. Co., 61 Mo.App. 572; Marshall v. Ins. Co., 80 Mo.App. 18; O'Keefe v. Ins. Co., 140 Mo. 558. (3) The question of vexatious delay is a question of fact to be determined by the jury from all the facts and circumstances in the case. Brown, Admr., v. Ins. Co., 45 Mo. 221; Keller v. Ins. Co., 198 Mo. 440; Kellogg v. Ins. Co., 133 Mo.App. 402; Uts v. Ins. Co., 139 Mo.App. 156. It was not necessary that respondent should offer evidence of vexatiousness. Vexation can be inferred by the trier of the facts from the facts and circumstances of the case. Brown, Admr., v. Ins. Co., 45 Mo. 221.


[157 Mo.App. 675] JOHNSON, J.

This suit is on a fire insurance policy of $ 1000, issued by defendant to plaintiff May 26, 1906. Plaintiff was the owner and operator of an electric light plant in the city of Lathrop and the policy in suit covered the gas engine and dynamo which were in his power house and so attached thereto that they must be considered a part of the realty and not as personal property. Two days after the policy was issued, the power house was destroyed by fire and the machinery, of which the engine and dynamo were the principal parts, was so badly damaged that plaintiff claims it became valueless for the purposes of its use as an integral part of the power plant.

The evidence of plaintiff is to the effect that the machinery had no value after the fire except what might be realized from it if sold as junk, while evidence introduced by defendant tends to show that by an outlay of $ 2500, in the replacement of destroyed or worthless parts and in the repairing of damaged parts the engine and dynamo could be restored to usefulness.

The policy contained a provision that if there was other insurance on the property the policy would...

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