Farber v. Boston Ins. Co.
| Decision Date | 24 May 1926 |
| Docket Number | No. 15637.,15637. |
| Citation | 288 S.W. 977 |
| Parties | FARBER v. BOSTON INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.
Action by Louis Farber against the Boston Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.
John S. Boyer, of St. Joseph, and Crow & Newman, of Kansas City, for appellant.
W. B. Norris and Strop & Silverman, all of St. Joseph, for respondent.
This is an action to recover on a policy of fire insurance in the sum of $1,000, issued by defendant upon a stock of merchandise owned by plaintiff, located at 1214 South Sixth street in the city of St. Joseph, Mo.
This is a second appeal of this cause to this court. The opinion on the former appeal is found reported at 215 Mo. App. 564, 256 S. W. 1079. The record on this appeal in all material matters is substantially the same as presented on the former hearing, and for the facts we refer to the former opinion, wherein the same are fully set out. The record in the present appeal shows there was a verdict for plaintiff for the full amount of his policy, with interest, amounting in total to $1,221.20. A timely motion for a new trial was overruled, and the defendant has appealed.
It is charged the court erred in giving instruction No. 7 for plaintiff. This instruction told the jury that defendant was not permitted to deny that, at the time the policy sued on was issued and delivered, the property thereby insured was worth the full amount of the insurance represented by that policy and all other existing policies upon the property. This instruction was based upon sections 6229 and 6239, R. S. 1919, of the Valued Policy Act, and that it properly declares the law as provided in these sections cannot be questioned. Defendant's objection to the instruction is that the value of the stock insured at the time the policy was issued was a question for the jury, in that it formed a basis for the proper determination of the value at the time of the loss, and the case of State ex rel. v. Cox, 307 Mo. 194, 270 S. W. 113, is cited in support of such contention.
We cannot accept the rule in the Cox Case as supporting defendant's position, for in that case the court held that an instruction assuming the value of the property insured at the time of the fire is improper. This is not a valid objection against the instruction. Moreover, instructions 5 and 6 for plaintiff properly declare the law as to the value of the property at the time of the fire, and these instructions must be held to be not in conflict with instruction No. 7.
There is a charge of error in the giving of instruction No. 8 for plaintiff. The objection is that this instruction told the jury there was no evidence that plaintiff had violated the provisions of the policy requiring an exhibition of the remains of the damaged property at any time. The clause of the policy covering this requirement is as follows:
"The insured as often as required shall exhibit to any person designated by this company all that remains of any property herein described."
On this point defendant insists it selected a Mr. Burt and a Mr. Cobb to examine and inventory the property; under the terms of that clause of the policy. It is charged these men so selected were denied the privilege of examination and inventory, and therefore the instruction was wrong.
In ruling on the point urged, it is deemed necessary to go to the record for facts. The testimony shows that the fire occurred on February 11, 1921; that insurance companies other than defendant herein had existing policies upon the property; that there was a common adjuster for the insuring companies who, within a few days after the fire, requested and was granted the privilege of having the stock inventoried. It appears the adjuster selected for such purpose two men, a Mr. Saurain and a Mr. Perry, from St. Joseph wholesale houses, one from a shoe house and the other from a dry goods house. Plaintiff's stock is shown to have been general. It is shown that these two men examined the remains of the insured property, inventoried, valued, and listed it, and delivered such inventory to the common adjuster. It seems that a few days later there was a conference between said adjuster and plaintiff's attorney, whereat defendant, being satisfied as to the value of the loss sustained, offered to pay a stipulated sum in settlement thereof, which offer was refused.
Thereafter, on May 11, 1921, plaintiff requested an appraisement, and, in accordance with the terms of the policy, plaintiff named an appraiser and requested defendant to name one, but it appears there was no compliance with this request. The record...
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