173 S.W. 695 (Mo.App. 1915), Kahn v. London Assurance Corporation

Citation:173 S.W. 695, 187 Mo.App. 216
Opinion Judge:JOHNSON, J.
Attorney:Fyke & Snider for appellant. Yates & Mastin and C. S. McLane for respondent.
Case Date:February 15, 1915
Court:Court of Appeals of Missouri

Page 695

173 S.W. 695 (Mo.App. 1915)

187 Mo.App. 216

LILLIE A. KAHN, Respondent,



Court of Appeals of Missouri, Kansas City

February 15, 1915

          Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

          AFFIRMED (conditionally.)

         Fyke & Snider for appellant.

         Yates & Mastin and C. S. McLane for respondent.


          [187 Mo.App. 217] JOHNSON, J.

          This is an action on a fire insurance policy issued by defendant on certain household goods owned by plaintiff and contained in a residence she rented furnished to tenants. The residence was unoccupied at the time of the fire which occasioned the loss. Some of the goods were totally destroyed, others damaged, and plaintiff claimed her actual loss was over $ 2000. The policy insured her against all direct loss and damage by fire in the sum of $ 1500, and provided that defendant "should not be liable beyond the actual cash value of the property at the time any loss or damage occurs . . . and in on event exceeding what it would then cost the insured to repair or replace the said property with material of like kind and quality."

         Plaintiff demanded payment of the face of the policy on the ground that the actual loss greatly exceeded that sum. Defendant denied that the loss equaled the amount of the insurance and pursuant to the terms of a stipulation in the policy the parties entered into a written agreement submitting the controversy to appraisers who returned an award appraising the loss at $ 400. Plaintiff refused to accept the award, claiming that it was improperly and illegally rendered and brought the present action to recover the face of the policy $ 1500, together with interest and also a ten per cent penalty and reasonable attorney fees for the alleged vexatious refusal of defendant to pay. The actual loss sustained by plaintiff in consequence of the fire was alleged to be $ 2179.77. In the answer defendant pleaded the appraisal of the loss and alleged that the amount awarded by the appraisers ($ 400) was a reasonable estimate of the actual loss.

         The reply attacked the validity of the award and the cause was tried by both parties on the theory that [187 Mo.App. 218] the only debatable issue in the case was the amount of the loss sustained by plaintiff. The jury returned a verdict for her assessing her loss,...

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