Berry v. Federal Kemper Ins. Co., 12055

• Decision Date: 21 September 1981
• Docket Number: No. 12055,12055
• Citation: 621 S.W.2d 948
• Parties: Chalmer R. BERRY and Wanda S. Berry, Plaintiffs-Respondents, v. FEDERAL KEMPER INSURANCE COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 948

621 S.W.2d 948

Chalmer R. BERRY and Wanda S. Berry, Plaintiffs-Respondents, v. FEDERAL KEMPER INSURANCE COMPANY, Defendant-Appellant.

No. 12055.

Missouri Court of Appeals, Southern District, Division Three.

Sept. 21, 1981.

Briney, Welborn & Spain, P. C., Bloomfield, for plaintiffs-respondents.

Harold D. Jones, Bock & Jones, New Madrid, for defendant-appellant.

PREWITT, Judge.

Plaintiffs sought recovery on an insurance policy for fire damage to a dwelling house and contents. A jury verdict was rendered in their favor for $60,000 for damage to the house and contents, $12,960 interest and $7,500 for attorney fees because of vexatious delay. Judgment was entered in accordance with the verdict. Defendant presents eight points for review. We find point seven in defendant's favor but also consider the remaining points as they could affect the manner of our reversal or arise again on retrial.

Defendant's first point contends that the trial court erred in overruling its motion to quash summons and service "for the reason that the Circuit Court of Scott County was an improper venue in this action on a fire policy because the building in which the fire occurred was in Dunklin County and the Plaintiffs were and still are residents of Dunklin County." Plaintiffs' petition alleged and defendant admitted that it is a foreign insurance corporation authorized to do business in Missouri with an office or agent for the transaction of its usual and customary business in Scott County, Missouri. Section 508.040, RSMo 1978, provides that suits against a corporation can be commenced "in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business."

Defendant states that it is unfair to require an insurer to try a case in any county where it has an agent or office, including one hundreds of miles from where the loss occurred or from the residence of the plaintiffs. It does acknowledge, however, that a "literal interpretation" of this section would result in plaintiffs being able to sue it in Scott County. Defendant's argument is a matter for the legislature's determination, not the courts. A foreign insurance company under this section can be sued either in the county where the cause of action accrued or in any county where it has an agent for the transaction of its usual and customary business. State ex rel. Standard Fire Ins. Co. of Hartford, Conn. v. Gantt, 274 Mo. 490, 203 S.W. 964, 968 (Mo. banc 1918). Point one is denied.

Defendant's second and third points are premised on the contention that plaintiffs did not have an insurable interest in the dwelling house. According to the last recorded deed describing the property, title to it was in C. R. Berry Investment Company, Inc. Plaintiffs held an unrecorded deed to the premises from that corporation. They presented evidence that it had been signed, acknowledged and delivered before they applied for the insurance and that they owned the property under this deed at the time of the loss. Defendant's second point claims that the unrecorded deed was invalid and counsel's motion for a directed verdict should have been granted because plaintiffs did not have an insurable interest in the premises. Part A of point three contends that the trial court should have sustained defendant's motion for a directed verdict because plaintiffs did not have "title to nor an insurable interest in the dwelling". Part B of point three claims that the court erred in giving a verdict directing instruction which did not require the jury to find that plaintiffs had either title to the premises or an insurable interest and erred in refusing to give an instruction tendered by defendants which required a finding of an insurable interest in plaintiffs.

If the unrecorded deed was valid, then plaintiffs were the owners of the dwelling and had an insurable interest. If it was not valid, then title was in the corporation. It was undisputed that plaintiff Chalmer R. Berry owned stock of that corporation. Evidence offered by defendant indicated he owned all of the stock. As a shareholder he had an insurable interest in the corporation's property. Annot., Insurable interest of stockholder in corporation's property, 39 A.L.R.2d 723, 724 (1955). Under either circumstance Chalmer R. Berry had an insurable interest. No contention is made that a directed verdict should have been rendered against Wanda S. Berry alone. If defendant had questioned whether Mrs. Berry had an insurable interest, that should have been submitted, because the jury may not have believed plaintiffs' evidence as to when the unrecorded deed was made. Whether Mr. Berry alone or he and his wife recovered apparently made no difference to defendant. There was an insurable interest shown by at least one of the plaintiffs. Points two and three are denied.

Defendant's fourth point contends that the court erred in admitting certain photographs of the interior of the building made almost four years after the fire occurred. Defendant claims they did not fairly and accurately represent the appearance of the house as it was immediately after the fire because the dwelling had been unoccupied and subject to other damage and deterioration. Defendant contends that these photographs show substantially more damage than photographs it had taken three days after the fire. Plaintiff Chalmer R. Berry testified that the photographs fairly and accurately reflected the condition of the house immediately after the fire except for certain changes which he explained. Photographs may be admissible in evidence when taken long after an event and after changes have occurred in the object taken, if such changes are explained. Brock v. Gulf, Mobile and Ohio Railroad Company, 270 S.W.2d 827, 833 (Mo.1954). Even substantial changes will not necessarily exclude a photograph where the changes can be and are explained so that the photograph, as explained, will give a correct understanding of the conditions. Phillips v. Prugh, 255 S.W.2d 84, 87 (Mo.App.1953). The photographs were sufficiently identified and the changes explained. Point four is denied.

Defendant's fifth point contends the trial court erred in permitting plaintiff Chalmer R. Berry to testify to the dimensions of the dwelling and its room sizes contained on a drawing prepared from his memory 39 months after the fire. Defendant also claims the court erred in permitting a contractor to testify regarding a repair estimate based upon information he received from Berry as to the dimensions of the rooms and the quality of materials in the house prior to the fire. Berry's dimensions varied with measurements made by a witness for defendant. Whether Berry was truthful was for the jury to decide. Point five is denied.

Point six contends that the court erred in allowing plaintiff Wanda S. Berry to testify as to the values of specific items of furniture allegedly destroyed in the fire because plaintiff Chalmer R. Berry testified that two days after the fire most of the furniture was missing from the house. Defendant contends there was no evidence that the furniture was in the house and was damaged by the fire. The fire occurred on September 26, 1976, while plaintiffs were living in Mississippi. They had last been at the premises on Labor Day of that year. The furniture valued had been in the house on Labor Day and plaintiffs said they had not taken it out or authorized anyone to remove it. The fire department captain who went to the house to extinguish the fire said there was no indication before the firemen entered that anyone had broken into the house. We think that whether the furniture was destroyed in the fire was a jury question. See Duckworth v. United States Fidelity & Guaranty Company, 452 S.W.2d 280, 286-287 (Mo.App.1970). Point six is denied.

Defendant's seventh point contends the trial court erred in giving the damage instruction submitted by plaintiffs as that instruction was "a tort measure of damages" and does not contain "any of the policy contract language for recovery of loss" and there was no substantial evidence to support the before and after measure of damages stated in the instruction for either the house or contents.

The argument portion of defendant's brief only develops its contention regarding lack of evidence of before and after values of the dwelling and contents. Thus we only consider those contentions. Subpoints lacking any argument or citation of authority are deemed abandoned and preserve nothing for appellate review. State v. Boley, 565 S.W.2d 828, 831 (Mo.App.1978). Issues submitted in an instruction to the jury must be supported by evidence from which the jury could find such issue. Walker v. Woolbright Motors, Inc., 591 S.W.2d 289, 291 (Mo.App.1979). There it was held that an instruction for the jury to determine the difference in value of a vehicle was erroneous as there was no evidence of value for the jury to consider.

The evidence as to contents was sufficient. Mrs. Berry detailed the value of items allegedly destroyed in the fire. We now discuss evidence of the before and after value of the dwelling.

Section 379.140, RSMo 1969, a "valued policy" statute, arbitrarily fixes the value of property insured for fire loss as the amount for which the property was insured less depreciation. MFA Mutual Insurance Company v. Southwest Baptist College, Inc., 381 S.W.2d 797, 803 (Mo.1964); Duckworth v. United States Fidelity & Guaranty Company, supra, 452 S.W.2d at 285; Blaetz v. National Fire Ins. Co. of Hartford, Conn., 293 S.W. 504, 506 (Mo.App.1927); Farber v. Boston Ins. Co., 221 Mo.App. 691, 288 S.W. 977, 978 (1926). See...