Boren v. Fidelity & Cas. Co. of New York
| Decision Date | 17 September 1963 |
| Docket Number | No. 31333,31333 |
| Citation | 370 S.W.2d 706 |
| Parties | Paul BOREN, (Plaintiff) Respondent, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
Roberts & Roberts, J. Richard Roberts, Farmington, for appellant.
Schnapp & Cooper, Fredericktown, Jackson, Thomasson & Dickerson, Cape Girardeau, for respondent.
This is an action to recover from the defendant insurance company a fire loss that occurred when the plaintiff's insured vehicle ran off the road and burned. The trial was to the court. There was a finding and judgment for the plaintiff in the sum of $7,500, and the defendant appealed.
There is no dispute about the following facts. The plaintiff was engaged in the 'wrecker and garage' business at LaMotte, Missouri. His truck, which is the vehicle here in question, was a tow truck described by the plaintiff as an
The plaintiff, who was a mechanic and welder, had assembled the truck and its component parts, such as the hoist winches and rigging. For the truck portion he had purchased two identical trucks and disassembled them. He had cut the frame of one truck off at the cab and joined the portion of the frame which he had cut off to the frame of the other truck to give it added length. He welded this additional frame on and put a quarter-inch plate along it to give it strength. He had also rebuilt the motor of the truck. The vehicle was capable of hoisting and dragging a trailer-tractor wreck.
At the time the car ran off the road and burned, it had been in use as a wrecker for about eighteen months. The accident occurred on November 28, 1960. The truck had been traveling downgrade for some distance, with a frequent use of the air brakes. The air pressure went down and the plaintiff's efforts to brake the truck with the motor by throwing it in gear resulted in putting the motor in neutral. With neither brakes nor motor to slow it, the truck speeded downgrade, left the road, hit some trees, and burned. The cab was completely burned out, the large front tires were ruined, and a tree by the side of the truck burned. All of the mechanism that operated the hoist and drag lines was close to the back of the cab, which was warped and twisted by the fire.
The defendant had insured the wrecker for $10,000. There is no dispute about the insurance being in force. Only one point is raised on this appeal, and that is as follows:
'The verdict of the trial court is excessive and the amount thereof is not supported by the evidence since there is no valid evidence that the vehicle in question could not be repaired for less than $7,500.00.'
The evidence offered on behalf of the plaintiff as to the loss sustained consisted, in part, of the testimony of the plaintiff. He had been in the garage business for eight years, working with various metals, and for some time before that he had been so engaged. He said that the truck itself and the wrecker mechanism were wrecked and burned. He said that the heat had been so intense that the light bulb on the highest part behind the cab melted, and that the control bars were bent. He said that the value of the truck prior to the fire was $10,000, and that thereafter it was worth only $2,500. He said that the heat of the fire affected the metal parts of the wrecker. He also stated that to be serviceable, every part had to be in reliable operation. He also said that the operation of a wrecker was hazardous. Illustrating this statement he said that a failure in any part might cause the wrecker to drop a car that it was lifting, and that if people were pinned under the car, such an occurrence would probably prove fatal to them.
A machinist who had been engaged in the business for over forty years and operated his own machine shop also testified. He had done work for many large corporations operating in the general area of his place of business. His work had consisted of dismantling, repairing, and reassembling many kinds of machinery. He examined the wrecker at the request of the plaintiff. He said that the hoisting mechanism looked like it had been very hot, and from his examination the heat had been sufficient to anneal some of the metal parts. He concluded that it would cost at least $5,000 to repair the hoisting and dragging mechanism, exclusive of any other damage. He did not consider the wrecker worth repairing.
A witness who had for the past six years operated his own machine shop and who had been before that employed as a machinist by the National Lead Company testified that he had examined the wrecker thoroughly and concluded that the heat of the fire weakened the wrecker so that it would have to be replaced with new parts.
Another witness ran a service station and salvage operation. He had worked with wreckers for about twenty years, and had been Batallion Motor Sergeant in World War II and Transportation Sergeant in the Korean action. He had been in charge of many sorts of heavy equipment, including wreckers. He was familiar with the wrecker here in question and had operated it. He said that it was worth at least $8,500 before the fire, and not worth more than $250 after the fire.
Photographs offered in evidence by the plaintiff showed part of the wrecking equipment blackened by fire, and the truck itself appeared to be badly burned.
The defendant called to the stand a witness who worked for Automobile Damage Appraisers. He had examined the wreck and he said that he did not believe there was any damage to the split boom. He said that it did not look like the fire...
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