Citizens Discount & Inv. Corp. v. Dixon

• Decision Date: 28 August 1973
• Docket Number: No. 34531,34531
• Citation: 499 S.W.2d 231
• Parties: CITIZENS DISCOUNT AND INVESTMENT CORPORATION and James N. Allen, Plaintiffs-Respondents, v. Cora Rosalee Carmack DIXON and State Automobile and Casualty Underwriters, Defendants-Appellants. . Louis District
• Court: Missouri Court of Appeals

Page 231

499 S.W.2d 231

CITIZENS DISCOUNT AND INVESTMENT CORPORATION and James N Allen, Plaintiffs-Respondents, v. Cora Rosalee Carmack DIXON and State Automobile and Casualty Underwriters, Defendants-Appellants.

No. 34531.

Missouri Court of Appeals, St. Louis District.

Aug. 28, 1973.

Zenge & Smith, Canton, Mitchell & Meade, Palmyra, for defendants-appellants.

Carstarphen, Harvey & Wasinger, Hannibal, for plaintiffs-respondents.

JOHN M. CAVE, Special Judge.

Defendant State Automobile and Casualty Underwriters appeals from judgment against it entered in accordance with jury verdicts for plaintiff Citizens Discount and Investment Corporation under 'loss payable' clause of fire insurance policy, and for defendant Dixon on said defendant's cross-claim for the remainder of the face amount of a valued policy plus interest and for penalty and attorney's fees for vexatious refusal by insurer. We affirm.

Plaintiff Citizens Discount, as payee, and one James N. Allen, as guarantor, sued defendant Dixon, as maker, for the balance due on a promissory note, and by Count II of their petition prayed judgment against defendant State Automobile and Casualty Underwriters to the extent of said unpaid balance under the loss payable clause of a valued policy insuring defendant Dixon against loss by fire of a certain 1957 Chevrolet truck with a Daffin Feed Mill mounted thereon which was security for the aforementioned promissory note. Plaintiffs also alleged vexatious refusal to pay and prayed for damages and attorney fees under § 375.420, RSMo 1969, V.A.M.S. On motion of defendant State Automobile and Casualty Underwriters, James N. Allen was dismissed as a party plaintiff. By answer to Count II of the petition, defendant State Auto admitted issuance of the pleaded policy with attached loss payable clause to plaintiff and admitted damage by fire. Said defendant further alleged that the policy provided that defendant insurer could replace the damaged property or pay the actual cost of replacement and that it had offered, and was still willing, to replace the property or pay the cost of replacement. In reply thereto, plaintiff denied that said policy provision was applicable under the law.

Except as to corporate existence of plaintiff and of defendant insurer, defendant Dixon's answer admitted the essential elements of Counts I and II of plaintiff's petition. For cross-claim against defendant insurer, Dixon alleged issuance by insurer of a valued policy in the sum of $11,000.00, total loss by fire within the policy period, proper notice of loss and compliance with requisites of the policy, and vexatious refusal of insurer to pay the stated value; and prayed for judgment for the face amount of the policy plus damages and attorney fees for vexatious refusal. By its answer to the cross-claim, insurer admitted issuance of the policy alleged, total destruction by fire within the policy period, notice of loss, and demand by insured for the face amount of the policy. For further answer, insurer alleged that the value of the property at the date of the loss was not to exceed $2,000.00, and that insurer had offered to replace the property with like kind or to pay more than the cash value of the property so destroyed. On the day of trial, insurer tendered into Court the sum of $2,500.00 plus accrued costs.

On jury trial the Court directed a verdict for plaintiff and against defendant Dixon at the close of all the evidence on Count I of the petition in the aggregate sum of $7,948.33 for principal and interest, and the jury returned verdicts for defendant Dixon on her cross-claim as follows:

                Recovery under the policy   $10,500.00
                Recovery for interest         1,216.25
                Recovery for pentalty           735.00
                Recovery for attorney fees    1,250.00
                                            ----------
                                     TOTAL  $13,701.25
                Less Citizens Discount        7,948.33
                            Due Mrs. Dixon   $5,752.92
                

and for plaintiff against defendant insurer on Count II of plaintiff's petition in the sum of $7,948.33. After unavailing motion for new trial the appeal followed.

Appellant's principal point, from which all others flow, is that the trial court erred in its ruling with reference to the depreciation aspect of the measure of damages in this case. In Duckworth v. U.S. Fidelity & Guaranty Co., 452 S.W.2d 280 (Mo.App.1970), it is held, at page 285 thereof, that the value of personal property insured by a 'valued policy' is fixed by § 379.160, RSMo 1969, V.A.M.S. at the full amount of the policy issued on this property as of its issuance; that the measure of damages for its total destruction is the fixed value less depreciation from that date until its loss; that evidence of repairs and improvements between those dates with no suggestion of depreciation is sufficient to support a finding that the property at the time of loss was reasonably worth the amount of the insurance; and that the burden of proving no depreciation is on the plaintiff; citing Meier v. Eureka-Security Fire & Marine Ins. Co., 168 S.W.2d 127 (Mo.App. 1943); Curtis v. Indemnity Co. of America, 327 Mo. 350, 37 S.W.2d 616 (1931); Gould v. M.F.A. Mutual Insurance Co., 331 S.W.2d 663 (Mo.App. 1960); and Riccardi v. United States Fidelity & Guaranty Co., 434 S.W.2d 737 (Mo.App. 1968). Proffered evidence by two witnesses, neither of whom had seen the property herein insured, was to the effect that the witness was familiar with the market price of a 1957 two ton Chevrolet equipped with a Daffin feed mill; that the value of such a vehicle on December 1, 1969, was from $2,000.00--$2,800.00; that the reason for such depreciation from July 16, 1969,...