Fager v. Commercial Union Assur. Co.

• Decision Date: 24 May 1915
• Docket Number: No. 11562.,11562.
• Citation: 189 Mo. App. 464,176 S.W. 1064
• Parties: FAGER et al. v. COMMERCIAL UNION ASSUR. CO.
• Court: Missouri Court of Appeals

176 S.W. 1064

189 Mo. App. 464

FAGER et al. v. COMMERCIAL UNION ASSUR. CO.

No. 11562.

Kansas City Court of Appeals, Missouri.

May 24, 1915.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by Grace Fager and another against the Commercial Union Assurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed, on condition that a remittitur be filed; otherwise, reversed and remanded.

Fyke & Snider, of Kansas City, and Smith & Chastain, of Butler, for appellant. Silvers & Silvers, of Butler, for respondents.

JOHNSON, J.

This is an action on two policies of fire insurance issued on different dates. The first, which is the basis of the cause of action pleaded in the first count of the petition, insured plaintiff Grace Fager, against loss or damage by fire for three years from November 1, 1910, in the total sum of $2,000, itemized as follows:

"$1,000 upon the two-story frame building and additions thereto * * * occupied as a dwelling * * * in the city of Butler. Also $1,000 on household furniture while contained in the above-described dwelling."

The second policy, issued August 12, 1912, carried additional insurance in the sum of $1,800 upon the same building, but did not cover the household goods. Each policy contained a stipulation (referred to in the petition) permitting other concurrent insurance, but there was no allegation of the existence at the time of the fire of concurrent insurance, either in the petition or in the answer,. although in the latter pleading a number of affirmative defenses, as well as a general denial, were alleged. The house and household goods were damaged by fire while both policies were in force.

It is alleged in both counts of the petition that the damage to the house was $3,500, and in the first count that the damage to the household goods was $2,700, and as the alleged loss on each class of property was greater than the insurance thereon, plaintiff prayed in each count for the recovery of the full amount of the policy and for statutory penalties for vexatious refusal to pay the loss. The evidence of plaintiff tends to show that the actual damage to each class of property exceeded the insurance thereon, while the evidence of defendant is that the damage was much less, and that before bringing suit plaintiff refused to adjust the loss on the personal property on any other basis than that of the liability of defendant to pay the full amount of the insurance on that property. For a reason, not now important, defendant denied liability for the damage to the house.

In the instructions given at the request of plaintiff, the jury were told:

"That if you find for the plaintiff on the first count of the petition on account of the loss of personal property by fire, you shall assess her damage therefor at the actual cash value of the personal property destroyed by fire, not exceeding $1,000. * * * In ascertaining the value of the personal property destroyed by fire, if any, you should deduct, from the fixed value, the value of any property covered by said policy which was removed from the building or saved from the fire, and also deduct the amount of depreciation in the value of the property so destroyed, if any, between the date of the issue of the policy and the date of the fire, and in any event you cannot assess her damages, on account of or damage to personal property at a sum to exceed $1,000. * * * If you find for the plaintiff on account of damage to her house by fire, the aggregate amount which she is entitled to recover for such damage is the amount of expenditure necessary to repair and rebuild said house, so as to put it in the same condition it was in immediately before the fire, and the amount of her recovery on account of damage to her said house by fire, if any, is further limited in this, that she cannot recover for such damage, if any, on the first count of her petition in a sum exceeding $1,000, nor on the second count in a sum exceeding $1,800."

As to the penalty claimed by plaintiff the jury were instructed that the refusal to pay the loss was vexatious if it was willful and without reasonable cause for a belief by defendant that "there was no liability from defendant to plaintiff or not so great a liability as plaintiff claimed."

The verdict was for plaintiff on the first count for damages in the sum of $1,675 and for penalties, including attorney's fee of $267, and...