Miller v. Firemen's Insurance Co.

• Decision Date: 08 March 1921
• Parties: MORITZ MILLER, Respondent, v. FIREMEN'S INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

229 S.W. 261

206 Mo.App. 475

MORITZ MILLER, Respondent, v. FIREMEN'S INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 8, 1921

Appeal from the Circuit Court of Lincoln County.--Hon. Edgar B Woolfolk, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Leahy & Saunders, D. E. Williams, and D. W. Voyles for appellant.

(1) The penalty of attorney's fees and damages should not be inflicted, where the evidence and circumstances in the case show that refusal to pay the claim made was not willful and without reasonable cause as the facts would appear to a reasonable and prudent man before a trial of the cause. Patterson v. Insurance Co., 174 Mo.App. 37; Jones v. Prudential Ins. Co., 155 S.W. 1106; R. S 1909, sec. 7068 as amended Acts 1911, p. 282; Fay v Aetna Ins. Co., 268 Mo. 373; Strawbridge v. Ins. Co., 174 Mo.App. 37; Non-Royalty Shoe Co. v. Ins. C., 210 S.W. 37. (2) Recovery as for a total loss in unwarranted where there was evidence of substantial salvage and where the insured's proof of loss shows there was substantial salvage. Sharp v. Insurance Co., 164 Mo.App. 475; Non-Royalty Shoe Co. v. Phoenix Ins. Co., 178 S.W. 246; R. S. 1909, sec. 7022; Brannigan v. Jefferson Mutual Fire Ins. Co., 102 Mo.App. 70; Stevens v. Fire Ins. Co., 120 Mo.App. 88. (3) Where willful and intentional burning is in issue in a civil case it is the duty of the jury to return a verdict for defendant, if the jury be of the opinion, from the evidence, that it is more probable that the burning was brought about by the insured than that he was innocent of it. The defendant, in such cases, is entitled to an instruction to that effect, and distinguishing a criminal from a civil case. State ex rel. Insurance Co. v. Ellison, 187 S.W. 23; Rothschild v. American Central Ins. Co., 62 Mo. 356; Polster v. See, 54 Mo. 291; Marshall v. Thames Ins. Co., 43 Mo. 586. Refusal to give instruction defining meaning of term "preponderance of the evidence" was prejudicial, hence erroneous under the peculiar facts in this case. Jones v. Durham, 94 Mo.App. 51; Mackin v. Railway Co., 45 Mo.App. 82. (4) Revised Statutes, 1909, section 7030, containing the three-fourths valuation clause, providing that the value as of the date of the policy shall not be questioned in any proceeding, does not apply to a clause based on fraud; nor where fraud in the inception of the policy is a relevant subject of inquiry under the issues. Harvester v. Insurance Co., 105 Mo.App. 575; Hartford Fire Ins. Co. v. Redding, 67 L.R.A. 515; Farber v. American Automobile Ins. Co., 191 Mo.App. 307; Walker v. Phoenix Ins. Co. 62 Mo.App. 209; 4 Cooley's Briefs on Insurance, page 3087. Where willful burning is in issue, the value and desirability of the property are relevant matters. First National Bank v. Fire Assn., 33 Ore. 172, 53 P. 8; Storm v. Phoenix Ins. Co., 61 Hun. 618, affirmed 133 N.Y. 653. (5) The trial court should not permit argument which amounts to an appeal to the jury to give judgment for one party on account of his poverty, or wealth of the opposite party; nor permit counsel to wring verdicts from the jury by statement of matters extraneous to the record, relying upon disinclination of appellate courts to interfere; intemperate, invective, and uncalled for abuse of parties and witnesses, is an attack on the fair administration of justice. Haynes v. Trenton, 108 Mo. 123; Parris v. Crutcher, 189 Mo.App. 151; Cameron v. Cameron, 162 Mo.App. 110; Wendler v. People's House Furn. Co., 165 Mo. 543; Norris v. Railroad, 239 Mo. 695, Tarreyson v. Railroad, 144 Mo.App. 626, Brady v. Springfield Traction Co., 174 S.W. 1070. (6) Plaintiff's given instruction No. 1 was erroneous because authorizing a verdict for plaintiff, without any finding for plaintiff upon vital questions in the case, such as measure of damage, absence of fraudulent oath, and willful burning under the issues in the case. State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984.

Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) Three-fourths value statute--R. S. 1909, sec. 7030. Under the above section, prior to the Act of 1919, the property is taken as worth not the amount for which it is insured, but the amount of insurance is conclusively presumed to be only three-fourths of its value, and in case of loss the burden of proof is on the insured to show that there was no depreciation of the value of such property between the time of the issuance of the policy and the fire. Smith v. Fire Ins. Co., 195 Mo.App. 379, 191 S.W. 1034. The above section, prior to the Act of 1919, was considered as a direction to insurance companies not to insure for more than three-fourths of the value of the property, and when they fixed the value and issued insurance for the sum fixed, they should not be allowed to dispute that such sum was three-fourths of the value. Crossan v. Ins. Co., 133 Mo.App. 537, 113 S.W. 704; Spickard v. Fire Association, 164 Mo.App. 1, 146 S.W. 808; Weston v. Ins. Co., 191 Mo.App. 282, 177 S.W. 792. The above section relates to the value of the property at the time of insurance and not at the time of the fire. Strawbridge v. Fire Ins. Co., 193 Mo.App. 687, 187 S.W. 79. If there are several policies, their total amount will be considered as only three-fourths of the value. Harris v. Hartford Ins. Co., 191 S.W. 1037. The jury should be permitted to determine the deterioration, if any, in the property insured, since the issuance of the policy. La Fonte v. Home Ins. Co., 193 Mo.App. 543, 182 S.W. 1029; R. S. 1919, sec. 6239, p. 1962. (2) Damages--R. S. 1909, sec. 6337. Formal affirmative proof of vexatious refusal to pay is not required. Brown v. Railway Passenger Assur. Co., 45 Mo. 221; Lockwood v. Atlantic Mut. Ins. Co., 47 Mo. 50; Blackwell v. American Cent. Ins. Co., 80 Mo.App. 75. Damages may be awarded although there is no direct and positive proof of vexatious delay. Coscarella v. Ins. Co., 175 Mo.App. 130, 157 S.W. 873; Stix v. Indemnity Co., 175 Mo.App. 171, 157 S.W. 870. The question of vexatious refusal or delay in payment is to be determined by the jury. Brown v. Railway Passenger Assur. Co., 45 Mo. 221; Keller v. Home Life Ins. Co., 95 S.W. 903; Hicks v. Metropolitan Life Ins. Co., 196 Mo.App. 162, 190 S.W. 661; R. S. 1919, sec. 6337, p. 1996. The same rule applies to realty. When the property destroyed is real property it is taken as worth the amount for which it is insured by the policy less any deterioration that it may have suffered between the date of the issuance of the policy and the date of the fire, and the burden of proving such deterioration, if any, is on the insurer. Smith v. Ins. Co., 195 Mo.App. 384, 191 S.W. 1034; Rogers v. Fire Ins. Co., 157 Mo.App. 671, 139 S.W. 265; La Fonte v. Home Ins. Co., 193 Mo.App. 543, 182 S.W. 1029; Ins. Co. v. Ry., 174 Mo.App. 542, 160 S.W. 907; R. S. 1919, Sec. 6229, p. 1957. (3) The remarks of counsel were not improper and the record fails to show a state of facts which would give this court authority to review the rulings. Cotton Lumber Co. v. LaCrosse Lumber Co., 200 Mo.App. 26; Milliken v. Larrabie, 192 S.W. 106; Torreyson v. United Rys. Co., 246 Mo. 706-707; Sperry v. Hurd, 267 Mo. 639; Diehl v. Bestgen, 217 S.W. 555.

ALLEN, J. Becker, J., concurs; Reynolds, P. J. , not sitting.

OPINION

ALLEN, J.

This is an action on a policy of fire insurance for the sum of $ 4000, issued by the defendant insurance company to plaintiff on December 20, 1916, insuring personal property consisting of a stock of goods--dry goods, notions, etc.--and furniture and fixtures located in a building at 4612 Florissant avenue in the City of St. Louis, for a term of one year from said date. There was other insurance on the property, and the policy in suit covered its proportion on two items, namely, $ 7500 on the stock in trade, and $ 500 on the furniture and fixtures.

The trial, before the court and a jury, resulted in a verdict in plaintiff's favor for $ 4000, "without interest," with a finding that defendant had vexatiously refused to pay the loss, assessing damages therefor at the sum of one dollar and allowing plaintiff an attorney's fee of $ 500. From a judgment entered accordingly defendant appeals.

The petition alleges that on December 20, 1916, plaintiff was the sole and unconditional owner of the property, which was located at the place aforesaid until it was damaged and destroyed by fire. After alleging the issuance of the policy to plaintiff by defendant, the petition alleges that on January 8, 1917, a fire occurred at the place mentioned, which directly damaged and destroyed the insured's property to the extent and amount of $ 10,500, by reason whereof plaintiff suffered a direct loss by fire to the property in said sum; and that at said time and all times prior thereto, the insured property was of the actual cash value of $ 10,500.

The petition further alleges that plaintiff gave defendant due notice of the loss, and performed all of the terms and conditions of the contract of insurance to be performed by him, and that under the terms and conditions of the policy the insurance is due and payable to him; that he has demanded payment thereof from defendant, but that defendant has wrongfully, unlawfully and vexatiously refused to adjust the loss or pay plaintiff the same or any part thereof. Further allegations are made as to defendant's vexatious refusal to pay, and judgment is prayed for the sum of $ 4000 with interest from June 27, 1917, together with ten per cent. thereon as damages and a reasonable attorney's fee, to-wit, $ 500.

In the amended answer upon which the case was tried defendant admits the issuance of the policy, denying generally the other allegations of the petition. It is then averred...