Weston v. American Ins. Co.

• Decision Date: 14 June 1915
• Docket Number: No. 11588.,11588.
• Citation: 191 Mo. App. 282,177 S.W. 792
• Parties: WESTON v. AMERICAN INS. CO.
• Court: Missouri Court of Appeals

177 S.W. 792

191 Mo. App. 282

WESTON v. AMERICAN INS. CO.

No. 11588.

Kansas City Court of Appeals, Missouri.

June 14, 1915.

Rehearing Denied July 2, 1915.

Appeal from Circuit Court, Jackson County; A. C. Southern, Judge.

Action by Cooper Weston against the American Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition that plaintiff file remittitur.

Fyke & Snider, of Kansas City, for appellant. J. H. McVay and Park & Brown, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's actioL is, based on a policy of fire insurance covering personal property in the sum of $1,500. The judgment in the trial court was for her.

It appears that plaintiff owned household goods in a residence on Prospect avenue, in Kansas City, Mo., and she had a policy of insurance on them for $300 for a term of three years. In about one year thereafter she concluded to move to 4605 State Line street She went to defendant's agent and informed him of her intention to move to the latter street, and that she desired to increase her insurance to $1,500. He canceled the old policy, allowed her for the unearned premium, and issued the new policy, locating the property as in the house on State Line street, to which it was to be removed. A few days thereafter she removed the property. Shortly after her removal, she acquired other property, notably a piano, which she valued at $300. In about one month after her removal, the house and her property were totally destroyed by fire.

In our opinion the policy attached as valid insurance in the new location as soon as it was removed there. The agent knew of the old policy and Of the intention to remove to another place, and consented to it, and increased the insurance in a policy which stated the property to be in the new location. The insurance was in fact made of property situated in a certain building, and, though it was not there at the date of the policy, it was to be immediately taken there. The following cases, while not like this in all particulars, sustain plaintiff's case: Pollock v. Insurance Co., 127 Mich. 460, 473, 86 N. W. 1017; Cooper v. Insurance Co., 96 Minn. 81, 104 N. W. 687; Williamsburg Ins. Co. v. Cary, 83 Ill. 453; Hulen v. Insurance Co., 80 Kan. 127, 102 Pac. 52.

We are furthermore of the opinion that the policy became a valued policy in the new location for the sum insured. There is no reason why the law as to valued policies on personal property should not apply in instances where there is a removal with the consent of the insurer. And this is true even though, at the time the policy is issued, none of the property is in the place to which the insured, with the consent of the insurer, intends to remove it, if it is there when burned. The statute (section 7030, R. S. 1909), as interpreted by the courts directs insurance companies not to issue policies for more than three-fourths the value of the property, and that, when a company issues a policy for a certain amount, it will not be permitted to dispute that sum. That is to say, it will be conclusively presumed that the property is worth one-fourth more than the amount insured. In other words, the policy becomes a valued policy for the sum insured. Gibson v. Insurance Co., 82 Mo. App. 515; Spickard v. Fire Ass'n, 164 Mo. App. 1, 146 S. W. 808, and cases cited. But the amount to be recovered on such a policy will, of course, depend upon the status of affairs at the time of the fire. If there has been no change, the full amount insured is due; but if there has been a decline in value, a loss, or sale, of a part, with no corresponding increase by new acquisitions, such loss should be deducted; and this will apply to household furniture as well as merchandise kept for retail. But the basis of calculation will be an amount of which the sum named in the policy is three-fourths, which in this case is $2,000. Spickard v. Fire Ass'n, supra. It appearing in evidence that a few articles were not brought to the new location, and that others were acquired after the policy was issued, it became necessary to ascertain if these changes reduced the total value below $2,000, and plaintiff made a statement, under oath, of what the property burned consisted, its value, and when acquired. This showed a value slightly in excess of $2,000 and, if correct, entitled her to recover the full amount of the policy. Defendant attacks this statement as being falsely exaggerated and backed by perjury, which, it insists, should forfeit plaintiff's right to recover. This was, however, submitted to the jury, and we must accept the...