Curtis v. Indemnity Co. of America

• Citation: 37 S.W.2d 616,327 Mo. 350
• Decision Date: 31 March 1931
• Docket Number: 28823
• Parties: Ed Curtis v. Indemnity Company of America, Appellant
• Court: United States State Supreme Court of Missouri

37 S.W.2d 616

327 Mo. 350

Ed Curtis v. Indemnity Company of America, Appellant

No. 28823

Supreme Court of Missouri

March 31, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

W. E Moser and Hensley, Allen & Marsalek for appellant.

(1) The court erred in overruling defendant's motion to strike out part of plaintiff's petition. (a) The cause of action attempted to be described, based on an oral modification of the policy alleged to have been made by defendant, through its adjuster, to pay plaintiff $ 7500 as his loss, was fatally defective for failure to state any consideration for such new or substituted agreement. Swift v. Ins Co., 279 Mo. 606; Patterson v. Ins. Co., 174 Mo.App. 157; Gerhart Realty Co. v. Ins. Co., 86 Mo.App. 596. (b) A motion to strike out part of a pleading on the ground that it fails to state a cause of action or defense, is equivalent to a demurrer to such part of the pleading. Shohoney v. Railroad, 231 Mo. 131; State ex rel. v. Ellison, 266 Mo. 423; Paxon v. Talmage, 87 Mo. 16; State ex rel. Davis v. Rogers, 79 Mo. 283. (2) The court erred in giving plaintiff's Instructions 3 and 4. (a) The agreement of the adjuster, after the fire to pay plaintiff, as his loss, $ 7500, the principal of the policy, was not actionable as an oral contract by defendant for the payment of said sum, because said alleged agreement was not supported by any consideration. Swift v. Ins. Co., 279 Mo. 607; Scott v. Realty Co., 241 Mo. 137; Rogers v. Foundry Co., 167 Mo.App. 251; Bassi v. Ins. Co. (Cal. App.), 208 P. 154; Hagelin v. Ins. Co., 106 Neb. 187; Liverpool Ins. Co. v. Tilles, 110 Ala. 201; Penn. F. Ins. Co. v. Draper, 187 Ala. 103. (b) Plaintiff could not avail himself of the alleged new or substituted agreement, as a basis of recovery, without showing a consideration therefor. Lingenfelder v. Brew. Co., 103 Mo. 593; Moomaw v. Emerson, 80 Mo.App. 322; Tucker v. Bartle, 85 Mo. 114; Smith v. McCall, 63 Mo.App. 631; Patterson v. Ins. Co., 174 Mo.App. 157; Wilt v. Hammond, 179 Mo.App. 406; Shriner v. Craft, 166 Ala. 146; Awe v. Gadd, 179 Iowa 520. (3) The court erred in admitting in evidence plaintiff's Exhibits D, E and F. Said exhibits comprised correspondence between defendant and its agent, with respect to the investigation of plaintiff's claim, and as such were privileged. 28 R. C. L. 519; Davenport v. Railroad Co., 166 Pa. St. 480; In re Krueger, 14 Fed. Cas. No. 7942; Mo., etc., Railroad Co. v. Williams, 43 Tex. Civ. App. 549; Liggett v. Glenn, 51 F. 395; State v. Dawson, 90 Mo. 149; Ebersole v. Ranken, 102 Mo. 488; Woolsey v. Poole, 14 C. B. (N. S.) 538, 32 L. J. (C. P.) 263; Chartered Bank of India v. Rich, 4 B. & S. 73, 116 Eng. C. L. 73. (4) The court erred in permitting plaintiff to testify to statements made to him by defendant's adjuster. The adjuster's statements, that defendant might as well kiss the policy good-bye; that the matter would be settled; that the plaintiff would have a draft for the full amount of the policy in a few days, and that there was nothing else for the company to do, were all beyond the scope of his authority, and not admissible against the defendant. Stipel v. Piggot (Mo. App.), 269 S.W. 942; Adams v. Hannibal etc. Rd. Co., 74 Mo. 556; Elliot Jobbing Co. v. Railroad, 136 Minn. 138; Wright v. Railroad, 81 N.H. 361. (5) The court erred in refusing to permit defendant to show the reasonable value of plaintiff's car at the time of the fire. State ex rel. Ins. Co. v. Cox, 307 Mo. 194; State ex rel. Burton v. Allen, 312 Mo. 111; Avery v. Ins. Co. (Mo. App.), 280 S.W. 729. (6) The court erred in striking out the testimony of witness Astridge as to the depreciation in the value of the car between the policy date and the fire. Authorities, Point 5, supra; Boulicault v. Glass Co., 283 Mo. 237; State v. Sykes, 191 Mo. 62. (7) The court erred in refusing to admit the testimony of Harold J. Boyle, that at the time of the fire the price of a new car, identical with plaintiff's, was $ 7,736. Conner v. Railroad, 181 Mo. 419; Matthews v. Railroad, 142 Mo. 666. (8) Defendant's Instructions G and H correctly stated the law as to the amount plaintiff was entitled to recover. Authorities, Point 5, supra. (9) The court erred in giving plaintiff's instructions submitting alleged vexatious refusal to pay the loss. The evidence was insufficient to justify the submission of said question to the jury. Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. 422; Patterson v. Ins. Co., 174 Mo.App. 44. (10) The court erred in refusing defendant's Instruction F. Defendant was entitled to this instruction which was an affirmative presentation of its theory of the case on the issue of its alleged vexatious refusal to pay. Authorities, Point 9, supra.

C. W. Crossman and Jeffries, Simpson & Plummer for respondent.

(1) Plaintiff's recovery was under the policy of insurance, and not under a new and independent contract requiring a new consideration. Gerhart Realty Co. v. Ins. Co., 86 Mo.App. 596; Ramsey v. Underwriters Assn., 71 Mo.App. 380; McNees v. Ins. Co., 69 Mo.App. 232; Lance v. Royalty Ins. Co., 259 S.W. 535; Grier Bros. v. Northern Assurance Co., 183 Pa. 343. (2) It is the business of insurance adjusters to ascertain the loss and agree with the assured on a settlement. McCollum v. Ins. Co., 67 Mo.App. 66; Roberts v. Ins. Co., 94 Mo.App. 151. (3) The measure of damages for a loss under a fire insurance policy is the amount of the insurance policy, minus depreciation, if any, from the date of the policy to the date of the loss. State ex rel. v. Allen, 312 Mo. 111; Marshal v. Ins. Co., 80 Mo.App. 18; Avery v. Ins. Co., 4 S.W.2d 873; Elliott v. Fire Ins. Co., 267 S.W. 444. (4) The court properly required the production of plaintiff's Exhibits D, E & F as proper original evidence in the cause. Phillips v. Railroad, 211 Mo. 419; Iron v. Am. Railway Express Co., 300 S.W. 283. (5) Defendant's requested Instruction H ignored the Valued Policy Statute and was properly refused. State ex rel. v. Allen, 312 Mo. 111; Marshal v. Ins. Co., 80 Mo.App. 18; Avery v. Ins. Co., 4 S.W.2d 873; Elliott v. Fire Ins. Co., 267 S.W. 444. (6) The submission to the jury of the question of defendant's vexatious refusal to pay was proper. Fay v. Ins. Co., 268 Mo. 388; Young v. Ins. Co., 269 Mo. 21; Hayward v. Ins. Co., 287 S.W. 1084. (7) Defendant's requested Instruction F was properly refused. Fay v. Ins. Co., 268 Mo. 388; Young v. Ins. Co., 269 Mo. 21; Hayward v. Ins. Co., 287 S.W. 1084.

Seddon, C. Ferguson and Sturgis, CC., concur.

OPINION

SEDDON

Plaintiff (respondent here) instituted this action in the Circuit Court of the City of St. Louis on November 16, 1925, to recover from the defendant insurance company (appellant here) for the total loss and destruction by fire of a Pierce Arrow roadster automobile owned by plaintiff, who was insured against loss of said automobile by fire under a written policy of insurance issued by defendant in consideration of the payment by plaintiff of a stipulated premium fixed by defendant.

The petition alleges, in substance, that defendant is a corporation organized and existing under the laws of Missouri, and is engaged in the business of insuring persons against loss and damage of property by fire and other hazards; that on March 3, 1923, in consideration of a premium of $ 33.75 paid to defendant by plaintiff, the defendant did insure plaintiff in the sum of $ 7500 against loss and damage by fire arising from any cause whatsoever, within the limits of the United States, upon a certain Pierce Arrow roadster automobile, for a term of one year beginning on March 3, 1923, and ending on March 3, 1924, in accordance with the terms and conditions of a certain contract or policy of insurance, a verified copy of which is attached to the petition; that on January 5, 1924, while said contract of insurance was in full force and effect, the said automobile, owned by plaintiff, and so insured by defendant, was totally destroyed by fire at or near Yates Center, Kansas; that plaintiff was the sole owner of said automobile at the time it was totally destroyed by fire, at which time said automobile was of the value of $ 7500, and in excess thereof; that plaintiff had performed all of the terms and conditions of said contract of insurance required to be performed by him, and on February 26, 1924, had made, executed and delivered to defendant a sworn proof of loss; that, according to the terms of said contract of insurance, the amount of defendant's liability thereunder was $ 7500, which amount was payable to plaintiff sixty days after the latter date; that plaintiff had frequently demanded of defendant the payment of said sum and amount, but that defendant had refused and failed to pay the same, or any part thereof, and that said failure and refusal to pay on defendant's part is vexatious. In addition to the foregoing, the petition contains the following paragraph:

"That shortly thereafter (i. e., after the fire) the defendant sent its adjuster to visit the premises and view the destroyed automobile, and thereupon said adjuster agreed and acknowledged to the plaintiff that said car was totally destroyed by fire, and that the loss and damage thereon was in the amount of seven thousand five hundred dollars, and in excess thereof, and that the defendant was indebted to said plaintiff in the sum of seven thousand five hundred dollars, the full amount of its liability under said contract of insurance, and said adjuster informed the plaintiff that the defendant would shortly thereafter pay and discharge its obligation in the sum of seven thousand and five hundred dollars."

The petition prays judgment against defendant for the principal sum of $ 7500, with interest thereon from April 29,...