Avery v. Mechanics' Ins. Co.

• Decision Date: 01 February 1926
• Docket Number: No. 15473.,15473.
• Parties: AVERY v. MECHANICS' INS. CO. OF PHILADELPHIA.
• Court: Missouri Court of Appeals

280 S.W. 726

AVERY v. MECHANICS' INS. CO. OF PHILADELPHIA.

No. 15473.

Kansas City Court of Appeals. Missouri.

February 1, 1926.

Rehearing Denied February 27, 1926.

Action by John F. Avery against the Mechanics' Insurance Company of Philadelphia. Judgment for the plaintiff, and defendant appeals. Reversed and remanded for new trial.

John S. Boyer, of St. Joseph, and Crow & Newman, of Kansas City, for appellant.

Landis & Duncan, of St. Joseph, for respondent.

ARNOLD, J.

This is an action to recover the sum of $600 for the total destruction of plaintiff's household goods, under the terms of a certain ordinary fire insurance policy issued to plaintiff by defendant on February 5, 1924; the life of the policy being three years from that date. The household goods in question were contained in plaintiff's home at No. 6503 Brown street in the city of St. Joseph, Mo.

The facts shown are that plaintiff lived with his family at the place designated, and that he owned the adjoining house, No. 6501 Brown street, which was immediately north of that in which plaintiff lived, but that house was not fully completed at the time of the fire. On the night of July 24, 1924, the house at 6503 Brown street, together with plaintiff's household goods, were destroyed by fire, with the exception of a few articles which were shown to have been damaged. Following the fire, plaintiff moved his family into his house at 6501 Brown street, which, as stated, was not completed.

There is evidence to the effect that there were no articles of furniture in the house into which plaintiff moved his family, excepting, possibly, one chair and an old bench; that the family slept on the floor on some straw and did their cooking in the back yard by a camp fire. The testimony is, further, to the effect that there were no rugs or carpets, beds or bedding in the house at 6501 Into which plaintiff moved on the day after the fire.

The agent of defendant company was notified of the fire, and in a short time thereafter an adjuster for defendant called upon plaintiff for the purpose of adjusting the loss. There is testimony tending to show that plaintiff was greatly in need of money at the time; that the adjuster told him that the sum of $300 was the limit of defendant's liability under the policy, that no greater sum than that would be paid him, and that if he would accept that amount it would be paid in a few days.

Plaintiff testified that owing to his financial condition, and relying upon and believing the adjuster's statement that he could not recover a greater sum, he agreed to a settlement for $300. This agreement was reached on July 27, 1924, and proof of loss for that amount was signed. The draft however, was not issued until September 15, 1924, and plaintiff had no knowledge of its issuance and receipt at St. Joseph until October 5th, following. There is no evidence that a disagreement existed between the parties as to the property destroyed requiring the services of appraisers as provided in the policy in such an event. Plaintiff insists that the settlement was made entirely upon the understanding that the money was to be paid at once, and also under the mistaken belief that $300 was all plaintiff was entitled to recover under the terms of the policy.

The evidence in behalf of defendant is contradictory of that of plaintiff relative to the conversations and agreements between plaintiff and defendant's adjuster. The adjuster, William E. Gable, testified that plaintiff told him that $300 worth of furniture, or more, had been removed from the premises prior to the fire. That statement was denied by plaintiff, who testified that he had not removed any of the furniture but, instead, that he had added $100 worth of furniture to his holdings between the date of the issuance of the policy and the date of the fire.

The petition alleges the issuance of the policy for $600, for which he paid a premium of $6; the total loss by fire on July 24, 1924, and the giving of legal notice of the fire and loss. Judgment was prayed in the amount of $600, based upon the total loss of the property insured.

The amended answer pleads the full settlement, prior to the institution of the suit, of the claim upon which the petition is based, for the sum of $300, which by the terms of the agreement of settlement was to be left with defendant's agent, Harry Niedorp, and for which plaintiff was to issue his receipt in full; that the amount was to be delivered to N. D. Biles & Co., lumber dealers, and that after said agreement, defendant delivered its draft for $300 to said Niedorp to be delivered to said Biles & Co.; that said Niedorp, at all times thereafter, has been able and willing to pay the amount so agreed upon, but that plaintiff has refused to accept said amount in full settlement, or to consent to its payment to said Biles & Co.; that defendant "now tenders into court the said draft," in compliance with said agreement.

The reply alleges that plaintiff was ignorant of his rights under the law, to the effect that the value of his property, as stated in terms in the policy, could not be disputed by defendant; that he relied upon the false and fraudulent statements of defendant to the effect that he could not recover in excess of $300 under the terms of the policy, and the further statement that such sum would be paid him immediately upon his agreement to accept $300 in full, and that said agreement was without consideration; that defendant did not comply with the terms of the agreement, in that it did not pay plaintiff the said $300 at once and did not tender Same for more than 60 days thereafter. The reply further states that except for the fraudulent misrepresentations of defendant that he would not be permitted to recover the ful amount of insurance named in the policy, and that the money was to be paid him immediately, he would not have agreed to said sum; that defendant did not comply with the terms of the agreement; that at the time of the destruction by fire of the property insured, plaintiff was indebted to the N. D. Biles Lumber Company in the sum of $180, and that said sum was secured by a lien upon the dwelling house which was destroyed by the same fire which destroyed the household goods in question; that it was agreed at the time of such purported settlement that the Biles Lumber Company's claim should be deducted from the amount of the settlement for the destruction of the house, and that said Biles Lumber Company had no claim of any kind or character against any sum or sums to be obtained in a settlement for loss of the household goods.

Upon the pleadings thus made, the cause was tried to the court and jury. At the close of plaintiff's evidence and again at the close of all the evidence, defendant asked, and the court refused, an instruction in the nature of a demurrer. The cause was submitted to the jury and resulted in a verdict for plaintiff in the sum of $540. Thereupon defendant filed its motion for a judgment non obstante veredicto which is in words as follows:

"Comes now the defendant in the above-entitled cause and respectfully states and shows to the court that notwithstanding the verdict of the jury in this case for the plaintiff, the defendant is entitled to judgment because there was a dispute between the parties, plaintiff and defendant, as to the property removed from plaintiff's building before the fire, and in reference to depreciation and salvage. The verdict of the jury recognizes this fact in the amount returned by the jury, it being less than the full amount of the policy, and is, therefore, a finding in favor of defendant upon the issue. If there was a dispute, then plaintiff was not entitled to recover in this case."

The motion was overruled, as was also defendant's motion for a new trial. Defendant appealed.

It is charged the court erred in refusing, at the close of all the evidence, to give a peremptory instruction to the jury to find for defendant. The position of defendant in this respect is expressed as follows:

"Th...