Byrd v. Bankers' & Shippers' Ins. Co.
| Decision Date | 20 May 1930 |
| Parties | W. H. BYRD, RESPONDENT, v. BANKERS AND SHIPPERS INSURANCE COMPANY, APPELLANT. [*] |
| Court | Missouri Court of Appeals |
ON MOTION FOR REHEARING.
In defendant's motion for rehearing the point is made that this court, in placing the value of the car at the time it was stolen at $ 419, was in error, because the plaintiff pleaded in his petition that the car was worth only $ 324. It is urged that plaintiff cannot be permitted to place a greater value on his car in testifying in the case than he pleaded its value to be. The point is well taken. Plaintiff is bound by the value of the car pleaded in his petition, which was $ 324. Since the car sold for $ 241, the difference in plaintiff's favor was $ 83, plaintiff having recovered a judgment in the sum of $ 324, this court should require a remittitur of $ 241, representing the difference between what plaintiff actually received and what he should have received.
The point is also made that defendant was entitled to credit for the sum of $ 73.61, paid the National Bond & Investment Company for expense in recovering the car. We do not consider this to be a proper deduction in defendant's favor because this amount was expended in recovering the car and not in payment of any amount of insurance due. It is our order that if plaintiff will remit the sum of $ 241, within ten days from the filing of this opinion, the judgment will be affirmed, otherwise it will be reversed and remanded.
The motion for rehearing is overruled. Cox, P. J., and Smith, J., concur.
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Notes:
[*]Corpus Juris-Cyc References: Evidence, 22CJ, section 142, p. 185, n. 53; Insurance, 33CJ, section 792, p. 81, n. 78; Parties, 47CJ, section 73, p. 38, n. 55; section 383, p. 200, n. 59; Pleading, 49CJ, section 121, p. 122, n. 55.
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Byrd v. Bankers' & Shippers' Ins. Co.
...v. BANKERS AND SHIPPERS INSURANCE COMPANY, APPELLANT. [*] Court of Appeals of Missouri, SpringfieldMay 20, 1930 Rehearing Denied 224 Mo.App. 451 at 454. from Circuit Court of Dunklin County.--Hon. W. S.C. Walker, Judge. AFFIRMED (on condition). Motion rehearing overruled. Henson & Woody for......