Avery v. Mechanics Ins. Co. of Philadelphia

• Decision Date: 05 December 1927
• Citation: 4 S.W.2d 871,222 Mo.App. 31
• Parties: JOHN F. AVERY, RESPONDENT, v. MECHANICS INSURANCE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

4 S.W.2d 871

222 Mo.App. 31

JOHN F. AVERY, RESPONDENT, v. MECHANICS INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

December 5, 1927

Appeal from the Circuit Court of Buchanan County.--Hon. William H Utz, Judge.

AFFIRMED.

Judgment affirmed.

Landis & Duncan and John C. Landis III for respondent.

John S Boyer and Crow & Newman for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action to recover on a policy of fire insurance on plaintiff's household goods. From a verdict and judgment for plaintiff in the sum of $ 540, defendant appeals.

Briefly the facts are that defendant is a corporation of the State of Pennsylvania and is authorized to do business in the State of Missouri. Plaintiff is a resident of the city of St. Joseph, Missouri. On February 5, 1924, in consideration of $ 6 premium paid by plaintiff, defendant issued its policy of insurance for a period of three years, agreeing thereby to indemnify plaintiff in a sum not exceeding the amount of $ 600, for total loss or damage by fire of the following described property, while located and contained in assured's home located at No. 6503 Brown street in St. Joseph, Mo., to-wit: All household and kitchen furniture and utensils, useful and ornamental, the property of assured and all members of his family, including carpets, rugs, curtains, beds, bedding, family wearing apparel, and other household property while contained in the described building or stored in outbuildings on the described premises. Also covering the interest which assured might have in articles, covered under the terms of the policy, purchased on the installment plan.

Plaintiff lived with his family at No. 6503 Brown street and he also owned an unfinished house adjoining, known as 6501 Brown street. On the night of July 24, 1924, while the said policy was in effect, there was a fire which destroyed the house numbered 6503, together with plaintiff's household goods, excepting a few articles shown to have been damaged. Defendant company was notified and in a short time thereafter an adjuster for defendant appeared.

The testimony of plaintiff tends to show that at the time of the fire he was in great need of money; that the adjuster told him $ 300 was the limit of defendant's liability under the policy, and that no greater sum would be paid him; that if he would accept said amount it would be paid him in a few days; that, owing to his financial condition and relying upon the truthfulness of the adjuster's statement that he could not recover a greater sum, he agreed to accept a settlement of $ 300, providing the amount was paid at once. This agreement was reached on July 27, 1924, and on that date a proof of loss was signed. The draft was not issued until September 24, 1924, and plaintiff states he had no knowledge of its issuance and receipt in St. Joseph until October 5, 1924. Plaintiff refused to accept the said draft in full settlement of his loss, and instituted an action alleging total loss and asking judgment for the full amount of the policy.

The petition alleged proper formal matters and charged that under the terms of the policy he duly notified defendant of the complete loss and destruction of the property insured and demanded the full amount of the policy, but that defendant vexatiously and without cause failed and refused to pay said sum. Judgment was sought in the sum of $ 600, ten per cent. penalty for vexatious refusal to pay and $ 250 attorney's fee.

Defendant filed its second amended answer stating that long prior to the institution of said cause, plaintiff and defendant finally settled said claim, by which defendant was to pay plaintiff the sum of $ 300, and that the amount of said settlement was to be left with one Harry Niedorp, and the said amount was to be accepted in full settlement of all claims under and by virtue of said loss; that said amount was to be delivered to N. D. Biles & Co.; that defendant delivered said draft to Niedorp as agreed and that Niedorp has at all times since been able and willing to pay said amount as per agreement, but that plaintiff has at all times refused to accept same; that defendant tenders said draft into court; that said policy provides, in part, as follows:

"In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser reselected by them and shall bear equally the expenses of the appraisal and umpire.

". . . and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required."

The answer further avers that there was a disagreement between plaintiff and defendant as to the amount of the loss, if the loss was not agreed upon and settled, as pleaded in this answer; that plaintiff has at no time demanded or requested an appraisal of the loss, and that plaintiff cannot recover in this cause because no request has been made for such appraisal.

The reply to the second amended answer denies generally; and specifically denies that there was any disagreement between plaintiff and defendant as to the amount of the loss; and denies that defendant, at any time disputed the fact that there was a total loss, or at any time requested or demanded the appointment of appraisers, or demanded an appraisal of said loss or damage; that except for the representations that the money would be immediately paid, he would not have agreed to accept the same sum of $ 300; that defendant did not carry out the terms of its agreement to pay said sum to plaintiff immediately after entering into said agreement; and did not tender the same for more than sixty days thereafter; that defendant did not carry out the terms of its agreement, and there was no consideration other than herein set out for accepting a lesser sum than the whole amount of the policy, less reasonable depreciation; that, at the time of the destruction of said property plaintiff was indebted to N. D. Biles Lumber Company in the sum of approximately $ 180; that said sum was secured by a lien upon the dwelling house of plaintiff which was destroyed by fire at the time of the destruction of the household goods in question; and it was understood at the time of said purported settlement that the Biles claim should be deducted from the amount of the settlement for the loss of the house; and that N. D. Biles Lumber Company would have no further claim of any kind or character against plaintiff; that action has been instituted against defendant for recovery of damages for the destruction of said dwelling, against which the Biles Company had the lien; that the Biles Company had no claim of any kind or character against plaintiff's rights involved in the suit at bar.

This is the second appeal to this court in this case. On the first trial there was a verdict and judgment for plaintiff in the sum of $ 540, and on appeal to this court the judgment was reversed and the cause remanded for a new trial because of error in an instruction. The cause was retried and judgment was for plaintiff in the sum of $ 540. The opinion of this court on the former appeal is found...